***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 1 of 322

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 52 

[EPA-HQ-OAR-2012-0322; FRL-xxxx-x]

RIN 2060-AR68 

State Implementation Plans: Response to Petition for Rulemaking; Findings of 

Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess 

Emissions During Periods of Startup, Shutdown, and Malfunction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA is proposing to take action on a petition for rulemaking filed by

the Sierra Club with the EPA Administrator on June 30, 2011 (the Petition). The Petition 

includes interrelated requests concerning the treatment of excess emissions in state rules 

by sources during periods of startup, shutdown, or malfunction (SSM). The EPA is 

proposing to grant in part and to deny in part the request in the Petition to rescind its 

policy interpreting the Clean Air Act (CAA) to allow states to have appropriately drawn 

state implementation plan (SIP) provisions that provide affirmative defenses to monetary

penalties for violations during periods of SSM. The EPA is also proposing either to grant 

or to deny the Petition with respect to the specific existing SIP provisions related to SSM 

in each of 39 states identified by the Petitioner as inconsistent with the CAA. Further, for 

each of those states where the EPA proposes to grant the Petition concerning specific 

provisions, the EPA also proposes to find that the existing SIP provision is substantially

inadequate to meet CAA requirements and thus under CAA authority proposes a "SIP 

call." For those states for which the EPA proposes a SIP call, the EPA also proposes a 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 2 of 322

schedule for the states to submit a corrective SIP revision. Finally, the EPA is also 

proposing to deny the request in the Petition that the EPA discontinue reliance on 

interpretive letters from states to clarify any potential ambiguity in SIP submissions, even 

in circumstances where the EPA may determine that this approach is appropriate and has 

adequately documented that approach in a rulemaking action. This action reflects the 

EPA's current SSM Policy for SIPs. 

DATES: Comments. Comments must be received on or before [INSERT DATE 30 

DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER].

Public Hearing. If anyone contacts the EPA requesting a public hearing by 

[INSERT DATE 15 DAYS AFTER PUBLICATION IN THE FEDERAL 

REGISTER], we will hold a public hearing on March 12, 2013. 

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR2012-0322, by one of the following methods: 

 http://www.regulations.gov: Follow the online instructions for submitting 

comments. 

 Email: a-and-r-docket@epa.gov. 

 Fax: (202) 566-9744. 

 Mail: Attention Docket ID No. EPA-HQ-OAR-2012-0322, U.S. Environmental 

Protection Agency, EPA West (Air Docket), 1200 Pennsylvania Avenue, NW, Mail 

Code: 6102T, Washington, DC 20460. Please include a total of two copies. 

 Hand Delivery: U.S. Environmental Protection Agency, EPA West (Air Docket), 

1301 Constitution Avenue, Northwest, Room 3334, Washington, DC 20004, Attention 

Docket ID No. EPA-HQ-OAR-2012-0322. Such deliveries are only accepted during the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 3 of 322

Docket's normal hours of operation, and special arrangements should be made for 

deliveries of boxed information. 

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2012-0322. 

The EPA's policy is that all comments received will be included in the public docket 

without change and may be made available online at www.regulations.gov, including any 

personal information provided, unless the comment includes information claimed to be 

Confidential Business Information (CBI) or other information whose disclosure is 

restricted by statute. Do not submit information that you consider to be CBI or otherwise 

protected through www.regulations.gov or email. The www.regulations.gov website is an 

"anonymous access" system, which means the EPA will not know your identity or 

contact information unless you provide it in the body of your comment. If you send an 

email comment directly to the EPA without going through www.regulations.gov, your 

email address will be automatically captured and included as part of the comment that is 

placed in the public docket and made available on the Internet. If you submit an 

electronic comment, the EPA recommends that you include your name and other contact 

information in the body of your comment and with any CD you submit. If the EPA 

cannot read your comment due to technical difficulties and cannot contact you for 

clarification, the EPA may not be able to consider your comment. Electronic files should 

avoid the use of special characters, avoid any form of encryption, and be free of any

defects or viruses. For additional information about the EPA's public docket visit the 

EPA Docket Center homepage at www.epa.gov/epahome/dockets.htm. For additional 

instructions on submitting comments, go to section I.C of the SUPPLEMENTARY 

INFORMATION section of this document. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 4 of 322

Docket. All documents in the docket are listed in the www.regulations.gov index. 

Although listed in the index, some information is not publicly available, e.g., CBI or 

other information whose disclosure is restricted by statute. Certain other material, such as 

copyrighted material, will be publicly available only in hard copy. Publicly available 

docket materials are available either electronically at www.regulations.gov or in hard 

copy at the U.S. Environmental Protection Agency, Air Docket, EPA/DC, EPA West 

Building, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 

legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, 

and the telephone number for the Air Docket is (202) 566-1742. 

Public Hearing: If a public hearing is held, it will be held on March 12, 2013, at 

the EPA Ariel Rios East building, Room 1153, 1301 Constitution Avenue, Washington, 

DC 20460. The public hearing will convene at 9 a.m. (Eastern Standard Time) and 

continue until the later of 6 p.m. or 1 hour after the last registered speaker has spoken.

People interested in presenting oral testimony or inquiring as to whether a hearing is to be 

held should contact Ms. Pamela Long, Air Quality Planning Division, Office of Air 

Quality Planning and Standards (C504-01), U.S. Environmental Protection Agency, 

Research Triangle Park, NC 27711, telephone (919) 541-0641, fax number (919) 541-

5509, email address long.pam@epa.gov, at least 5 days in advance of the public hearing 

(see DATES). People interested in attending the public hearing must also call Ms. Long 

to verify the time, date, and location of the hearing. The public hearing will provide 

interested parties the opportunity to present data, views, or arguments concerning the 

proposed action. The EPA will make every effort to accommodate all speakers who 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 5 of 322

arrive and register. A lunch break is scheduled from 12:30 p.m. until 2 p.m. Because this 

hearing is being held at U.S. government facilities, individuals planning to attend the 

hearing should be prepared to show valid picture identification to the security staff in 

order to gain access to the meeting room. In addition, you will need to obtain a property 

pass for any personal belongings you bring with you. Upon leaving the building, you will 

be required to return this property pass to the security desk. No large signs will be 

allowed in the building, cameras may only be used outside of the building, and 

demonstrations will not be allowed on federal property for security reasons. The EPA 

may ask clarifying questions during the oral presentations but will not respond to the 

presentations at that time. Written statements and supporting information submitted 

during the comment period will be considered with the same weight as oral comments 

and supporting information presented at the public hearing. If a hearing is held on March 

12, 2013, written comments on the proposed rule must be postmarked by April 11, 2013. 

Commenters should notify Ms. Long if they will need specific equipment, or if there are 

other special needs related to providing comments at the hearing. The EPA will provide 

equipment for commenters to show overhead slides or make computerized slide 

presentations if we receive special requests in advance. Oral testimony will be limited to 

5 minutes for each commenter. The EPA encourages commenters to provide the EPA 

with a copy of their oral testimony electronically (via email or CD) or in hard copy form. 

The hearing schedule, including lists of speakers, will be posted on the EPA's website at

www.epa.gov/air/urbanair/sipstatus/. Verbatim transcripts of the hearings and written 

statements will be included in the docket for the rulemaking. The EPA will make every

effort to follow the schedule as closely as possible on the day of the hearing; however, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 6 of 322

please plan for the hearing to run either ahead of schedule or behind schedule. 

FOR FURTHER INFORMATION CONTACT: If you have questions 

concerning the public hearing, please contact Ms. Pamela Long, U.S. Environmental 

Protection Agency, Office of Air Quality Planning and Standards, Air Quality Planning 

Division, (C504-01), Research Triangle Park, NC 27711, telephone (919) 541-0641, fax 

number (919) 541-5509, email address: long.pam@epa.gov (preferred method for 

registering). Questions concerning this proposed rule should be addressed to Ms. Lisa 

Sutton, U.S. EPA, Office of Air Quality Planning and Standards, State and Local 

Programs Group, (C539-01), Research Triangle Park, NC 27711, telephone number (919) 

541-3450, email at sutton.lisa@epa.gov. 

SUPPLEMENTARY INFORMATION: 

For questions related to a specific SIP, please contact the appropriate EPA 

Regional Office: 

EPA 

Regional 

Office

Contact for Regional Office (person, 

mailing address, telephone number) State

I Alison Simcox, Environmental Scientist, 

EPA Region 1, 5 Post Office Square, 

Suite 100, Boston, MA 02109-3912, 

(617) 918-1684.

Connecticut, Massachusetts, 

Maine, New Hampshire, Rhode 

Island, and Vermont.

II Paul Truchan, EPA Region 2, 290 

Broadway, 25th Floor, New York, NY 

10007-1866, (212) 637-3711.

New Jersey, New York, Puerto 

Rico, and Virgin Islands.

III Harold Frankford, EPA Region 3, 1650 

Arch Street, Philadelphia, PA 19103-

2029, (215) 814-2108. 

District of Columbia, Delaware, 

Maryland, Pennsylvania, 

Virginia, and West Virginia.

IV Joel Huey, EPA Region 4, Atlanta 

Federal Center, 61 Forsyth Street, SW, 

Atlanta, GA 30303-8960, (404) 562-

9104. 

Alabama, Florida, Georgia, 

Kentucky, Mississippi, North 

Carolina, South Carolina, and 

Tennessee.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 7 of 322

EPA 

Regional 

Office

Contact for Regional Office (person, 

mailing address, telephone number) State

V Christos Panos, Air and Radiation 

Division (AR-18J), EPA Region 5, 77 

West Jackson Boulevard, Chicago, IL 

60604-3507, (312) 353-8328.

Illinois, Indiana, Michigan, 

Minnesota, Ohio, and 

Wisconsin.

VI Alan Shar (6PD-L), EPA Region 6, 

Fountain Place 12th Floor, Suite 1200, 

1445 Ross Avenue, Dallas, TX 75202-

2733, (214) 665-6691.

Arkansas, Louisiana, New 

Mexico, Oklahoma, and Texas.

VII Lachala Kemp, EPA Region 7, Air 

Planning and Development Branch, 

11201 Renner Boulevard, Lenexa, KS 

66219, (913) 551-7214. Alternate contact 

is Ward Burns, (913) 551-7960.

Iowa, Kansas, Missouri, and 

Nebraska.

VIII Adam Clark, Air Quality Planning Unit 

(8P-AR) Air Program, Office of 

Partnership and Regulatory Assistance, 

EPA Region 8, 1595 Wynkoop Street, 

Denver, CO 80202-1129, (303) 312-

7104.

Colorado, Montana, North 

Dakota, South Dakota, Utah, 

and Wyoming.

IX Lisa Tharp, EPA Region 9, Air Division, 

75 Hawthorne Street (AIR-8), San 

Francisco, CA 94105, (415) 947-4142.

Arizona; California; Hawaii 

and the Pacific Islands; Indian 

Country within Region 9 and 

Nevada.

X Donna Deneen, Environmental Engineer, 

Office of Air, Waste and Toxics (AWT107), EPA Region 10, 1200 Sixth 

Avenue, Suite 900, Seattle, WA 98101, 

(206) 553-6706.

Alaska, Idaho, Oregon, and 

Washington.

I. General Information

A. Does this action apply to me?

Entities potentially affected by this rule include states, U.S. territories, local 

authorities, and eligible tribes that are currently administering, or may in the future 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 8 of 322

administer, the EPA-approved implementation plans ("air agencies").

1

The EPA's action 

on the Petition is potentially of interest to all such entities because the EPA is evaluating 

issues related to basic CAA requirements for SIPs. Through this rulemaking, the EPA is 

both clarifying and applying its interpretation of the CAA with respect to SIP provisions 

applicable to excess emissions during SSM events. In addition, the EPA may find 

specific SIP provisions in states identified in the Petition to be substantially inadequate to 

meet CAA requirements, pursuant to CAA section 110(k)(5), and thus those states will 

potentially be affected by this rulemaking directly. For example, if a state's existing SIP 

provision allows an automatic exemption for excess emissions during periods of startup, 

shutdown, or malfunction, such that these excess emissions do not constitute a violation 

of the otherwise applicable emission limitations of the SIP, then the EPA may determine 

that the SIP provision is substantially inadequate because the provision is inconsistent 

with fundamental requirements of the CAA. This rule may also be of interest to the 

public and to owners and operators of industrial facilities that are subject to emission 

limits in SIPs, because it may require changes to state rules covering excess emissions. 

 

1

The EPA respects the unique relationship between the U.S. government and tribal 

authorities and acknowledges that tribal concerns are not interchangeable with state 

concerns. Under the CAA and EPA regulations, a tribe may, but is not required to, apply

for eligibility to have a tribal implementation plan (TIP). For convenience, we refer to 

"air agencies" in this rulemaking collectively when meaning to refer in general to states, 

the District of Columbia, U.S. territories, local air permitting authorities, and eligible 

tribes that are currently administering, or may in the future administer, EPA-approved 

implementation plans. The EPA notes that the petition under evaluation does not identify

any specific provisions related to tribal implementation plans. We therefore refer to 

"state" or "states" rather than "air agency" or "air agencies" when meaning to refer to one, 

some, or all of the 39 states identified in the Petition. We also use "state" or "states" 

rather than "air agency" or "air agencies" when quoting or paraphrasing the CAA or other 

document that uses that term even when the original referenced passage may have 

applicability to tribes as well. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 9 of 322

When finalized, this action will embody the EPA's updated SSM Policy for SIP 

provisions relevant to excess emissions during SSM events. 

B. Where can I get a copy of this document and other related information?

In addition to being available in the docket, an electronic copy of this proposal 

notice will also be available on the World Wide Web. Following signature by the EPA 

Assistant Administrator, a copy of this notice will be posted on the EPA's website, under 

SSM SIP Call 2013, at www.epa.gov/air/urbanair/sipstatus. In addition to this notice, 

other relevant documents are located in the docket, including a copy of the Petition and 

copies of each of the four guidance documents pertaining to excess emissions issued by

the EPA in 1982, 1983, 1999, and 2001, which are discussed in more detail later in this 

proposal notice. 

C. What should I consider as I prepare my comments?

1. Submitting CBI. Do not submit this information to the EPA through 

www.regulations.gov or email. Clearly mark the part or all of the information that you 

claim to be CBI. For CBI information in CD that you mail to the EPA, mark the outside 

of the CD as CBI and then identify electronically within the CD the specific information 

that is claimed as CBI. In addition to one complete version of the comment that includes 

information claimed as CBI, a copy of the comment that does not contain the information 

claimed as CBI must be submitted for inclusion in the public docket. Information so 

marked will not be disclosed except in accordance with procedures set forth in 40 CFR 

part 2. Send or deliver information identified as CBI only to the following address: 

Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. EPA, Research 

Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-2012-0322. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 10 of 322

2. Tips for preparing your comments. When submitting comments, 

remember to:

 Identify the rulemaking by docket number and other identifying information 

(subject heading, Federal Register date, and page number). 

 Follow directions - The agency may ask you to respond to specific questions or 

organize comments by referencing a Code of Federal Regulations (CFR) part or section 

number. 

 Explain why you agree or disagree; suggest alternatives and substitute language 

for your requested changes. 

 Describe any assumptions and provide any technical information and/or data that 

you used. 

 If you estimate potential costs or burdens, explain how you arrived at your 

estimate in sufficient detail to allow for it to be reproduced. 

 Provide specific examples to illustrate your concerns, and suggest alternatives. 

 Explain your views as clearly as possible, avoiding the use of profanity or 

personal threats. 

 Make sure to submit your comments by the comment period deadline identified. 

D. How is the preamble organized?

The information presented in this preamble is organized as follows:

I. General Information

A. Does this action apply to me?

B. Where can I get a copy of this document and other related 

information? 

C. What should I consider as I prepare my comments? 

D. How is the preamble organized? 

E. What is the meaning of key terms used in this notice?
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 11 of 322

II. Overview of Proposed Rule

A. How is the EPA proposing to respond to the Petition?

B. What did the Petitioner request? 

C. To which air agencies does this proposed rulemaking apply and 

why? 

D. What is the EPA proposing for any state that receives a finding of 

substantial inadequacy and a SIP call? 

E. What are potential impacts on affected states and sources? 

F. What happens if an affected state fails to meet the SIP submission 

deadline? 

G. What happens in an affected state in the interim period starting 

when the EPA promulgates the final SIP call and ending when the 

EPA approves the required SIP revision? 

III. Statutory, Regulatory, and Policy Background 

IV. Proposed Action in Response to Request to Rescind the EPA Policy

Interpreting the CAA to Allow Appropriate Affirmative Defense 

Provisions 

A. Petitioner's Request 

B. The EPA's Response 

V. Proposed Action in Response to Request for the EPA's Review of Specific 

Existing SIP Provisions for Consistency with CAA Requirements 

A. Petitioner's Request 

B. The EPA's Response 

VI. Proposed Action in Response to Request that the EPA Limit SIP Approval 

to the Text of State Regulations and Not Rely upon Additional Interpretive 

Letters from the State 

A. Petitioner's Request 

B. The EPA's Response 

VII. Clarifications, Reiterations, and Revisions to the EPA's SSM Policy

A. Applicability of Emission Limitations During Periods of Startup 

and Shutdown 

B. Affirmative Defense Provisions During Periods of Malfunction 

C. Affirmative Defense Provisions During Periods of Startup and 

Shutdown 

D. Relationship Between SIP Provisions and Title V Regulations 

E. Intended Effect of the EPA's Action on the Petition 

VIII. Legal Authority, Process, and Timing for SIP Calls 

A. SIP Call Authority Under Section 110(k)(5) 

1. General Statutory Authority

2. Substantial Inadequacy of Automatic Exemptions 

3. Substantial Inadequacy of Director's Discretion Exemptions 

4. Substantial Inadequacy of Improper Enforcement 

Discretion Provisions 

5. Substantial Inadequacy of Deficient Affirmative Defense 

Provisions 

B. SIP Call Process Under Section 110(k)(5) 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 12 of 322

C. SIP Call Timing Under Section 110(k)(5) 

IX. What is the EPA proposing for each of the specific SIP provisions 

identified in the Petition? 

A. Overview of the EPA's Evaluation of Specific SIP Provisions 

1. Automatic Exemption Provisions 

2. Director's Discretion Exemption Provisions 

3. State-only Enforcement Discretion Provisions 

4. Adequacy of Affirmative Defense Provisions 

5. Affirmative Defense Provisions Applicable to a "Source or 

Small Group of Sources" 

B. Affected States in EPA Region I 

1. Maine

2. New Hampshire 

3. Rhode Island 

C. Affected States in EPA Region II 

1. New Jersey

2. [Reserved] 

D. Affected States in EPA Region III 

1. Delaware 

2. District of Columbia 

3. Virginia 

4. West Virginia 

E. Affected States and Local Jurisdictions in EPA Region IV 

1. Alabama 

2. Florida 

3. Georgia 

4. Kentucky 

5. Kentucky: Jefferson County

6. Mississippi 

7. North Carolina 

8. North Carolina: Forsyth County

9. South Carolina 

10. Tennessee 

11. Tennessee: Knox County

12. Tennessee: Shelby County

F. Affected States in EPA Region V 

1. Illinois 

2. Indiana 

3. Michigan 

4. Minnesota 

5. Ohio 

G. Affected States in EPA Region VI 

1. Arkansas 

2. Louisiana 

3. New Mexico 

4. Oklahoma 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 13 of 322

H. Affected States in EPA Region VII 

1. Iowa 

2. Kansas

3. Missouri 

4. Nebraska 

5. Nebraska: Lincoln-Lancaster 

I. Affected States in EPA Region VIII 

1. Colorado 

2. Montana 

3. North Dakota 

4. South Dakota 

5. Wyoming 

J. Affected States and Local Jurisdictions in EPA Region IX 

1. Arizona 

2. Arizona: Maricopa County

3. Arizona: Pima County

K. Affected States in EPA Region X 

1. Alaska 

2. Idaho 

3. Oregon

4. Washington 

X. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and 

Executive Order 13563: Improving Regulation and Regulatory

Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132 – Federalism 

F. Executive Order 13175 – Consultation and Coordination with 

Indian Tribal Governments 

G. Executive Order 13045 – Protection of Children from 

Environmental Health Risks and Safety Risks 

H. Executive Order 13211 – Actions Concerning Regulations That 

Significantly Affect Energy Supply, Distribution, or Use 

I. National Technology Transfer and Advancement Act 

J. Executive Order 12898 – Federal Actions to Address 

Environmental Justice in Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

L. Judicial Review 

XI. Statutory Authority

E. What is the meaning of key terms used in this notice?

For the purpose of this notice, the following definitions apply unless the context 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 14 of 322

indicates otherwise: 

The terms Act or CAA mean or refer to the Clean Air Act. 

The term affirmative defense means, in the context of an enforcement proceeding, 

a response or defense put forward by a defendant, regarding which the defendant has the 

burden of proof, and the merits of which are independently and objectively evaluated in a 

judicial or administrative proceeding. By demonstrating that the elements of an 

affirmative defense have been met, a source may avoid a civil penalty but cannot avoid 

injunctive relief. 

The terms air agency and air agencies mean or refer to states, the District of 

Columbia, U.S. territories, local air permitting authorities with delegated authority from 

the state, and tribal authorities. 

The term automatic exemption means a generally applicable provision in a SIP 

that would provide that if certain conditions existed during a period of excess emissions, 

then those exceedances would not be considered violations of the applicable emission 

limitations. 

The term director's discretion provision means, in general, a regulatory provision 

that authorizes a state regulatory official unilaterally to grant exemptions or variances 

from applicable emission limitations or control measures, or to excuse noncompliance 

with applicable emission limitations or control measures, in spite of SIP provisions that 

would otherwise render such conduct by the source a violation. 

The term EPA refers to the United States Environmental Protection Agency. 

The term excess emissions means the emissions of air pollutants from a source 

that exceed any applicable SIP emission limitations. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 15 of 322

The term malfunction means a sudden and unavoidable breakdown of process or 

control equipment. 

The term NAAQS means national ambient air quality standard or standards. These 

are the national primary and secondary ambient air quality standards that the EPA 

establishes under CAA section 109 for criteria pollutants for purposes of protecting 

public health and welfare. 

The term Petition refers to the petition for rulemaking titled, "Petition to Find 

Inadequate and Correct Several State Implementation Plans under Section 110 of the 

Clean Air Act Due to Startup, Shutdown, Malfunction, and/or Maintenance Provisions," 

filed by the Sierra Club with the EPA Administrator on June 30, 2011. 

The term Petitioner refers to the Sierra Club. 

The term shutdown means, generally, the cessation of operation of a source for 

any reason. 

The term SIP means or refers to a State Implementation Plan. Generally, the State 

Implementation Plan is the collection of state statutes and regulations approved by the 

EPA pursuant to CAA section 110 that together provide for implementation, 

maintenance, and enforcement of a national ambient air quality standard (or any revision 

thereof) under section 109 for any air pollutant in each air quality control region (or 

portion thereof) within a state. In some parts of this notice, statements about SIPs in 

general also apply to tribal implementation plans in general even though not explicitly

noted. 

The term SSM refers to startup, shutdown, or malfunction at a source. It does not 

include periods of maintenance at such a source. An SSM event is a period of startup, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 16 of 322

shutdown, or malfunction during which there are exceedances of the applicable emission 

limitations and thus excess emissions. 

The term SSM Policy refers to the cumulative guidance that EPA has issued 

concerning its interpretation of CAA requirements with respect to treatment of excess 

emissions during periods of startup, shutdown, and malfunction at a source. The most 

comprehensive statement of the EPA's SSM Policy prior to this proposed rulemaking is 

embodied in a 1999 guidance document discussed in more detail in this proposal. When 

finalized, this action will embody the EPA's updated SSM Policy for SIP provisions 

relevant to excess emissions during SSM events. 

The term startup means, generally, the setting in operation of a source for any 

reason. 

II. Overview of Proposed Rule 

A. How is the EPA proposing to respond to the Petition? 

The EPA is proposing to take action on a petition for rulemaking that the Sierra 

Club (the Petitioner) filed with the EPA Administrator on June 30, 2011 (the Petition). 

The Petition concerns how air agency rules in EPA-approved SIPs treat excess emissions 

during periods of startup, shutdown, or malfunction of industrial process or emission 

control equipment. Many of these rules were added to SIPs and approved by the EPA in 

the years shortly after the 1970 amendments to the CAA, which for the first time 

provided for the system of clean air plans that were to be prepared by air agencies and 

approved by the EPA. At that time, it was widely believed that emission limitations set at 

levels representing good control of emissions during periods of normal operation could in 

some cases not be met with the same emission control strategies during periods of 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 17 of 322

startup, shutdown, maintenance, or malfunction. Accordingly, it was common for state 

plans to include provisions for special, more lenient treatment of excess emissions during 

such periods. Many of these provisions took the form of absolute or conditional 

statements that excess emissions from a source, when they occur outside of the source's 

normal operations, were not to be considered violations of the air agency rules, i.e., 

exemptions.

Excess emission provisions for startup, shutdown, maintenance, and malfunctions 

were often included as part of the original SIPs that the EPA approved in 1971 and 1972. 

In the early 1970s, because the EPA was inundated with proposed SIPs and had limited 

experience in processing them, not enough attention was given to the adequacy, 

enforceability, and consistency of these provisions. Consequently, many SIPs were 

approved with broad and loosely-defined provisions to control excess emissions. Starting 

in 1977, however, the EPA discerned and articulated to air agencies that exemptions for 

excess emissions during such periods were inconsistent with certain requirements of the 

CAA. The EPA also realized that such provisions allow opportunities for sources to 

repeatedly emit pollutants during such periods in quantities that could cause unacceptable 

air pollution in nearby communities with no legal pathway for air agencies, the EPA, or 

the courts to require the sources to make reasonable efforts to reduce these emissions. 

The EPA has been more careful after 1977 not to give new approval to SIP rules that are 

inconsistent with the CAA and has issued several guidance memoranda to advise states 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 18 of 322

on how to avoid impermissible provisions2as they expand and revise their SIPs. The 

EPA has also found several SIPs to be deficient because of problematic SSM provisions 

and called upon the affected states to amend their SIPs. However, in light of the other 

priority work facing both air agencies and the EPA, the EPA has not to date initiated a 

broad effort to get all states to remove impermissible provisions from their SIPs and to 

adopt other, approvable approaches for addressing excess emissions when appropriate. 

Public interest groups, including the Petitioner, have sued the EPA in several statespecific cases concerning SIP issues, and they have been urging the EPA to give greater 

priority to addressing the issue of SSM provisions in SIPs. In one of these SIP cases, the 

EPA entered into a settlement agreement requiring it to respond to the Petition from the 

Sierra Club. A copy of the settlement agreement is provided in the docket for this 

rulemaking.3

As alluded to earlier in this notice, there are available CAA-consistent approaches 

that can be incorporated into SIPs to address excess emissions during SSM events. While 

automatic exemptions and director’s discretion exemptions from otherwise applicable 

emission limitations are not consistent with the CAA, SIPs may include criteria and 

procedures for the use of enforcement discretion by air agency personnel and 

appropriately defined affirmative defenses. In this action, the EPA is articulating a policy

 

2

The term "impermissible provision" as used throughout this notice is generally intended 

to refer to a SIP provision identified by the Petitioner that the EPA believes to be 

inconsistent with requirements of the CAA. As described later in this notice (see section 

VIII.A), the EPA is proposing to find a SIP "substantially inadequate" to meet CAA 

requirements where the EPA determines that the SIP includes an impermissible 

provision. 

3

See, Settlement Agreement executed Nov. 30, 2011, to address a lawsuit filed by Sierra 

Club and WildEarth Guardians in the United States District Court for the Northern 

District of California: Sierra Club et al. v. Jackson, No. 3:10-cv-04060-CRB (N.D. Cal.). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 19 of 322

that reflects this principle and is reviewing the SIPs from 39 states to determine whether 

specific provisions identified in the Petition are consistent with the EPA's SSM Policy

and the CAA. In some cases, this review involves a close reading of the provision in the 

SIP and its context to discern whether it is in fact an exemption, a statement regarding 

enforcement discretion by the air agency, or an affirmative defense. Each state will 

ultimately decide how to address any SIP inadequacies identified by the EPA once the 

EPA takes final action. Recognizing that for some states, the EPA's response to this 

Petition entails reviewing SIP provisions that may date back several decades, the EPA 

will work closely with each of the affected states to develop approvable SIPs consistent 

with the guidance articulated in the final action. Section IX of this notice presents the 

EPA’s analysis of each SIP provision at issue. The EPA's review also hinges on 

interpretation of several relevant sections of the CAA. While the EPA has already 

developed and has been implementing the SSM Policy that is based on its interpretation 

of the CAA, this action provides the EPA an opportunity to invite public comment on this 

SSM Policy and its basis in the Clean Air Act. To that end, this notice contains a detailed 

clarifying explanation of the SSM Policy (including proposed revisions to it). Also, 

supplementary to this notice, the EPA is providing a memorandum to summarize the 

legal and administrative context for the proposed action, and the EPA invites public 

comment on the memorandum, which is available in the docket for this rulemaking.

4

This 

notice, and the final notice for this action after considering public comment, will also 

clarify for the affected states how they can resolve the identified deficiencies in their 

 

4

See, Memorandum, "Statutory, Regulatory, and Policy Context for this Rulemaking," 

Feb. 4, 2013.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 20 of 322

SIPs, as well as provide all air agencies guidance and model language as they further 

develop their SIPs in the future.

In summary, the EPA proposes to agree with the Petitioner that many of the 

identified SIP provisions are not permissible under the CAA. However, in several cases 

we are proposing to find that an identified SIP provision is actually one of the permissible 

approaches. Of the 39 states covered by the Petition, the EPA is proposing to make SIP 

calls for 36 states. 

The EPA is aware of other SSM-related SIP provisions that were not identified in 

the Petition but that may be inconsistent with the EPA's interpretation of the CAA. The 

EPA may address these other provisions later in a separate notice-and-comment action.

B. What did the Petitioner request? 

The Petition includes three interrelated requests concerning the treatment in SIPs 

of excess emissions by sources during periods of startup, shutdown, or malfunction. 

First, the Petitioner argued that SIP provisions providing an affirmative defense 

for monetary penalties for excess emissions in judicial proceedings are contrary to the 

CAA. Thus, the Petitioner advocated that the EPA should rescind its interpretation of the 

CAA expressed in the SSM Policy that allows appropriately drawn affirmative defense 

provisions in SIPs. The Petitioner made no distinction between affirmative defenses for 

excess emissions related to malfunction, startup, or shutdown. Further, the Petitioner 

requested that the EPA issue a SIP call requiring states to eliminate all such affirmative 

defense provisions in existing SIPs. As explained later in this proposal, the EPA is 

proposing to grant in part and to deny in part this request. The EPA does not agree with 

the Petitioner that appropriately drawn affirmative defense provisions for violations due 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 21 of 322

to excess emissions that result from malfunctions are contrary to the CAA, and thus the 

EPA is proposing to deny the request to revise its interpretation of the CAA concerning 

affirmative defenses for malfunctions. However, the EPA is proposing to revise its SSM 

Policy with respect to affirmative defenses for violations due to excess emissions that 

occur during startup and shutdown, in order to distinguish between planned events that 

are within the source's control and unplanned events that are not. The EPA believes that 

SIP provisions should encourage compliance during events that are within the source's 

control, and thus affirmative defenses for excess emissions during planned startup and 

shutdown are inappropriate, unlike those for excess emissions during malfunctions. 

Second, the Petitioner argued that many existing SIPs contain impermissible 

provisions, including automatic exemptions from applicable emission limitations during 

SSM events, director's discretion provisions that provide discretionary exemptions from 

applicable emission limitations during SSM events, enforcement discretion provisions 

that appear to bar enforcement by the EPA or citizens for such excess emissions, and 

inappropriate affirmative defense provisions that are not consistent with the 

recommendations in the EPA's SSM Policy. The Petitioner identified specific provisions 

in SIPs of 39 states that it considered inconsistent with the CAA and explained the basis 

for its objections to the provisions. As explained later in this proposal, the EPA agrees 

with the Petitioner that some of these existing SIP provisions are legally impermissible

and thus proposes to find such provisions "substantially inadequate"5to meet CAA 

requirements. Among the reasons for EPA's proposed action is to eliminate provisions 

 

5

The term "substantially inadequate" is used in the CAA and is discussed in detail in 

section VIII.A of this notice. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 22 of 322

that interfere with enforcement in a manner prohibited by the CAA. Simultaneously, the 

EPA proposes to issue a SIP call to the states in question requesting corrective SIP 

submissions to revise their SIPs accordingly. For the remainder of the identified 

provisions, however, the EPA disagrees with the contentions of the Petitioner and thus 

proposes to deny the Petition with respect to those provisions and to take no further 

action. The EPA's action on this portion of the Petition will assure that these SIPs comply

with the fundamental requirements of the CAA with respect to the treatment of excess 

emissions during periods of startup, shutdown, or malfunction. The majority of the SIP 

calls that EPA is proposing in this action implement the EPA's longstanding 

interpretation of the CAA through multiple iterations of its SSM Policy. In a few 

instances, however, the EPA is also proposing a SIP call to address the issue of 

affirmative defenses during periods of planned startup and shutdown, because the EPA is 

revising its prior interpretation of the CAA to distinguish between violations due to 

excess emissions that occur during malfunctions and violations due to excess emissions 

that occur during planned startup and shutdown, which are modes of normal source 

operation.

Third, the Petitioner argued that the EPA should not rely on interpretive letters 

from states to resolve any ambiguity, or perceived ambiguity, in state regulatory 

provisions in SIP submissions. The Petitioner reasoned that all regulatory provisions 

should be clear and unambiguous on their face and that any reliance on interpretive letters 

to alleviate facial ambiguity in SIP provisions can lead to later problems with compliance 

and enforcement. Extrapolating from several instances in which the basis for the original 

approval of a SIP provision related to excess emissions during SSM events was arguably
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 23 of 322

not clear, the Petitioner contended that the EPA should never use interpretive letters to 

resolve such ambiguities. As explained later in this proposal, the EPA acknowledges the 

concern of the Petitioner that provisions in SIPs should be clear and unambiguous. 

However, the EPA does not agree with the Petitioner that reliance on interpretive letters 

in a rulemaking context is never appropriate. Thus, the EPA is proposing to deny the 

request that actions on SIP submissions never rely on interpretive letters. Instead, the 

EPA explains how proper documentation of reliance on interpretive letters in notice-andcomment rulemaking nevertheless addresses the practical concerns of the Petitioner. 

The EPA solicits comment on its proposed response to the overarching issues in 

the Petition, and in particular on its proposed action with respect to each of the specific 

existing SIP provisions identified in the Petition as inconsistent with the requirements of 

the CAA. Through this action on the Petition, the EPA is clarifying, restating, and 

revising its SSM Policy. When finalized, this action will embody the EPA's updated SSM 

Policy for SIP provisions relevant to excess emissions during SSM events. 

C. To which air agencies does this proposed rulemaking apply and why? 

In general, the proposal may be of interest to all air agencies because the EPA is 

clarifying, restating, and revising its longstanding SSM Policy with respect to what the 

CAA requires concerning SIP provisions relevant to excess emissions during periods of 

startup, shutdown, and malfunction. For example, the EPA is denying the Petitioner's 

request that the EPA rescind its interpretation of the CAA to allow appropriately drawn 

affirmative defense provisions applicable to malfunctions, as explained in EPA guidance 

documents on this topic. The EPA is clarifying or revising its prior guidance with respect 

to several issues in order to ensure that future SIP submissions, not limited to those that 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 24 of 322

affected states make in response to this action, are fully consistent with the CAA. For 

example, the EPA is revising its prior guidance concerning whether the CAA allows 

affirmative defense provisions that apply during periods of planned startup and shutdown. 

This proposal also addresses the use of interpretive letters for purposes of EPA action on 

SIPs. 

In addition, the proposal is directly relevant to the states with SIP provisions 

identified in the Petition that the Petitioner alleges are inconsistent with CAA 

requirements or with the EPA's guidance concerning SIP provisions relevant to excess 

emissions. 

The EPA is proposing either to grant or to deny the Petition with respect to the 

specific existing SIP provisions in each of 39 states identified by the Petitioner as 

allegedly inconsistent with the CAA. The 39 states (comprising 46 state and local 

authorities and no tribal authorities) are listed in table 1, "List of States with SIP 

Provisions for Which the EPA Proposes Either to Grant or to Deny the Petition, in Whole 

or in Part." After evaluating the Petition, the EPA is proposing to grant the petition with 

respect to one or more provisions in 36 states of the 39 states listed, and these are the 

states for which the proposed action on petition, according to table 1, is either "Grant" or 

"Partially grant, partially deny." Conversely, the EPA is proposing to deny the petition 

with respect to all provisions that the Petitioner identified in 3 of the 39 states, and these 

(Idaho, Nebraska, and Oregon) are the states for which the proposed action on petition, 

according to table 1, is "Deny." 

For each of the states for which the EPA proposes to grant or partially to grant the 

Petition, the EPA proposes to find that one or more particular provisions in the state's 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 25 of 322

existing SIP identified by the Petitioner are substantially inadequate to meet the 

requirements of the CAA. Thus, the EPA also proposes to promulgate a SIP call to each 

of those states, requiring the state to correct those particular SIP provisions, in 

accordance with the SIP call process of CAA section 110(k)(5). The SIP calls apply only

to those specific provisions, and the scope of each of the SIP calls is limited to those 

provisions. 

For each of the states for which the EPA proposes to deny or to partially deny the 

Petition, the EPA proposes to find that particular provisions in the existing SIP identified 

by the Petitioner are consistent with the requirements of the CAA and thus not 

substantially inadequate to meet the requirements pursuant to CAA section 110(k)(5). 

Thus, the EPA proposes to take no action with respect to those states for those particular 

SIP provisions. 

Table 1. List of States with SIP Provisions for Which the EPA Proposes Either to 

Grant or to Deny the Petition, in Whole or in Part 

EPA 

Region State Proposed action on petition

I Maine............................................... .............Grant

New Hampshire.............................................Partially grant, partially deny

Rhode Island..................................................Grant

II New Jersey ....................................................Partially grant, partially deny

III Delaware........................................................Grant

District of Columbia......................................Partially grant, partially deny

Virginia..........................................................Grant

West Virginia ................................................Grant

IV Alabama.........................................................Grant

Florida ...........................................................Grant

Georgia ..........................................................Grant

Kentucky .......................................................Grant

Mississippi.....................................................Grant

North Carolina...............................................Grant

South Carolina...............................................Partially grant, partially deny
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 26 of 322

Tennessee ......................................................Grant

V Illinois............................................................Grant

Indiana ...........................................................Grant

Michigan........................................................Grant

Minnesota ......................................................Grant

Ohio...............................................................Partially grant, partially deny

VI Arkansas........................................................Grant

Louisiana .......................................................Grant

New Mexico ..................................................Grant

Oklahoma ......................................................Grant

VII Iowa ...............................................................Partially grant, partially deny

Kansas ...........................................................Grant

Missouri.........................................................Partially grant, partially deny

Nebraska........................................................Deny

VIII Colorado ........................................................Partially grant, partially deny

Montana.........................................................Grant

North Dakota .................................................Grant

South Dakota .................................................Grant

Wyoming.......................................................Grant

IX Arizona ..........................................................Partially grant, partially deny

X Alaska............................................................Grant

Idaho..............................................................Deny

Oregon ...........................................................Deny

Washington....................................................Grant

For each state for which the proposed action on the Petition is either "Grant" or 

"Partially grant, partially deny," the EPA proposes to find that certain specific provisions 

in each state's SIP are substantially inadequate to meet CAA requirements for the reason 

that these provisions are inconsistent with the CAA with regard to how the state treats 

excess emissions from sources during periods of startup, shutdown, and malfunction. The 

EPA believes that certain specific provisions in these SIPs fail to meet fundamental 

statutory requirements intended to protect the NAAQS, prevention of significant 

deterioration (PSD) increments, and visibility. Equally importantly, the EPA believes that 

the same provisions may undermine the ability of states, the EPA, and the public to 

enforce emission limitations in the SIP that have been relied upon to ensure attainment or 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 27 of 322

maintenance of the NAAQS or to meet other CAA requirements. 

For each state for which the proposed action on the Petition is either "Grant" or 

"Partially grant, partially deny," the EPA is also proposing in this rulemaking to call for a 

SIP revision as necessary to correct the identified provisions. The SIP revisions that the 

EPA is proposing to require will rectify a number of different types of defects in existing 

SIPs, including automatic exemptions from emission limitations, impermissible director's 

discretion provisions, enforcement discretion provisions that purport to bar enforcement 

by the EPA or through a citizen suit, and affirmative defense provisions that are 

inconsistent with CAA requirements. A corrective SIP revision addressing automatic or 

impermissible discretionary exemptions will ensure that excess emissions during periods 

of startup, shutdown, and malfunction are treated in accordance with CAA requirements. 

Similarly, a corrective SIP revision addressing ambiguity in who may enforce against 

violations of these emission limitations will also ensure that CAA requirements to 

provide for enforcement are met. A SIP revision to rectify deficiencies in affirmative 

defense provisions will assure that such defenses are only available when sources have 

met the criteria that justify their being shielded from monetary penalties in an 

enforcement action. The particular provisions for which the EPA is requiring SIP 

revisions are summarized in section IX of this notice. Many of these provisions were 

added to the respective SIPs many years ago and have not been the subject of action by

the state or the EPA since. 

D. What is the EPA proposing for any state that receives a finding of substantial 

inadequacy and a SIP call? 

If the EPA finalizes a finding of substantial inadequacy and issues a SIP call for 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 28 of 322

any state, the EPA's final action will establish a deadline by which the state must make a 

SIP submission to rectify the deficiency. Pursuant to CAA section 110(k)(5), the EPA has 

authority to set a SIP submission deadline up to 18 months from the date of the final 

finding of substantial inadequacy. Accordingly, the EPA is proposing that if it 

promulgates a final finding of substantial inadequacy and a SIP call for a state, the EPA 

will establish a date 18 months from the date of promulgation of the final finding for the 

state to respond to the SIP call. If, for example, the EPA's final findings are signed and 

disseminated in June 2013, then the SIP submission deadline for each of the states subject 

to the final SIP call would fall in December 2014. Thereafter, the EPA will review the 

adequacy of that new SIP submission in accordance with the CAA requirements of 

sections 110(a), 110(k), 110(l), and 193, including the EPA's interpretation of the CAA 

reflected in the SSM Policy as clarified and updated through this rulemaking. The EPA 

believes that states should be provided the maximum time allowable under CAA section 

110(k)(5) in order to have sufficient time to make appropriate SIP revisions following 

their own SIP development process. Such a schedule will allow for the necessary SIP 

development process to correct the deficiencies yet still achieve the necessary SIP 

improvements as expeditiously as practicable. 

E. What are potential impacts on affected states and sources? 

The issuance of a SIP call would require an affected state to take action to revise 

its SIP. That action by the state may, in turn, affect sources as described below. The states 

that would receive a SIP call will in general have options as to exactly how to revise their 

SIPs. In response to a SIP call, a state retains broad discretion concerning how to revise 

its SIP, so long as that revision is consistent with the requirements of the CAA. Some 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 29 of 322

provisions that may be identified in a final SIP call, for example an automatic exemption 

provision, would have to be removed entirely and an affected source could no longer 

depend on the exemption to avoid all liability for excess emissions. Some other 

provisions, for example a problematic enforcement discretion provision or affirmative 

defense provision, could either be removed entirely from the SIP or retained if revised 

appropriately, as described in the EPA’s SSM Policy. The EPA notes that if a state 

removes a SIP provision that pertains to the state's exercise of enforcement discretion, 

this removal would not affect the ability of the state to apply discretion in its enforcement 

program. It would make the exercise of such discretion case-by-case in nature. 

In addition, affected states may choose to consider reassessing particular emission 

limitations, for example to determine whether those limits can be revised such that wellmanaged emissions during planned operations such as startup and shutdown would not 

exceed the revised emission limitation, while still protecting air quality. Such a revision 

of an emission limitation may need to be submitted as a SIP revision for EPA approval if 

the existing limit to be changed is already included in the SIP or if the existing SIP relies 

on the particular existing emission limit to meet a CAA requirement. In such instances, 

the EPA would review the SIP revision for consistency with all applicable CAA 

requirements. A state that chooses to revise particular emission limitations, in addition to 

removing the aspect of the existing provision that is inconsistent with CAA requirements, 

could include those revisions in the same SIP submission that addresses the SSM 

provisions identified in the SIP call, or it could submit them separately. 

The implications for a regulated source in a given state, in terms of whether and 

how it would potentially have to change its equipment or practices in order to operate 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 30 of 322

with emissions that comply with the revised SIP, will depend on the nature and frequency

of the source's SSM events and how the state has chosen to revise the SIP to address 

excess emissions during SSM events. The EPA recognizes that after all the responsive 

SIP revisions are in place and are being implemented by the states, some sources may

need to take steps to better control emissions so as to comply with emission limits 

continuously, as required by the CAA, or to increase durability of components and 

monitoring systems to detect and manage malfunctions promptly. If a state elects to have 

appropriately drawn affirmative defense provisions, however, such sources may not be 

liable for monetary penalties for any exceedances. 

The EPA Regional Offices will work with states to help them understand their 

options and the potential consequences for sources as the states prepare their SIP 

revisions in response to the SIP calls. 

F. What happens if an affected state fails to meet the SIP submission deadline? 

If, in the future, the EPA finds that a state that is subject to a SIP call has failed to 

submit a complete SIP revision as required by the final rule, or the EPA disapproves such 

a SIP revision, then the finding or disapproval would trigger an obligation for the EPA to 

impose a federal implementation plan (FIP) within 24 months after that date. In addition, 

if a state fails to make the required SIP revision, or if the EPA disapproves the required 

SIP revision, then either event can also trigger mandatory 18-month and 24-month 

sanctions clocks under CAA section 179. The two sanctions that apply under CAA 

section 179(b) are the 2-to-1 emission offset requirement for all new and modified major 

sources subject to the nonattainment new source review program and restrictions on 

highway funding. More details concerning the timing and process of the SIP call, and 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 31 of 322

potential consequences of the SIP call, are provided in section VIII.B of this notice. 

G. What happens in an affected state in the interim period starting when the EPA 

promulgates the final SIP call and ending when the EPA approves the required SIP 

revision? 

If the EPA issues a final SIP call to a state, that action alone will not cause any

automatic change in the legal status of the existing affected provision(s) in the SIP. 

During the time that the state takes to develop a SIP revision in accordance with the SIP 

call and the time that the EPA takes to evaluate and act upon the SIP revision pursuant to 

CAA section 110(k), the existing affected SIP provision(s) will remain in place. The EPA 

notes, however, that the state regulatory revisions that the state has adopted and 

submitted for SIP approval will most likely be already in effect at the state level during 

the pendency of the EPA's evaluation of and action upon the new SIP submission. 

The EPA recognizes that in the interim period, there may continue to be instances 

of excess emissions that adversely impact attainment and maintenance of the NAAQS, 

interfere with PSD increments, interfere with visibility, and cause other adverse 

consequences as a result of the impermissible provisions. However, given the need to 

resolve these longstanding SIP deficiencies in a careful and comprehensive fashion, the 

EPA believes that providing sufficient time for these corrections to occur will ultimately

be the best course to ensure the ultimate goal of eliminating the inappropriate SIP 

provisions and replacing them with provisions consistent with CAA requirements. 

III. Statutory, Regulatory, and Policy Background 

The Petition raised issues related to excess emissions from sources during periods 

of startup, shutdown, or malfunction, and to the correct approach to these excess 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 32 of 322

emissions in SIPs. In this context, "excess emissions" are air emissions that exceed the 

otherwise applicable emission limitations in a SIP, i.e., emissions that would be 

violations of such emission limitations. The question of how to address excess emissions 

correctly during startup, shutdown, and malfunction events has posed a challenge since 

the inception of the SIP program in the 1970s. The primary objective of state and federal 

regulators is to ensure that sources of emissions are subject to appropriate emission 

controls as necessary in order to attain and maintain the NAAQS, protect PSD 

increments, protect visibility, and meet other statutory requirements. Generally, this is 

achieved through enforceable emission limitations on sources that apply, as required by 

the CAA, continuously. 

Several key statutory provisions of the CAA are relevant to the EPA's evaluation 

of the Petition. These provisions relate generally to the basic legal requirements for the 

content of SIPs, the authority and responsibility of air agencies to develop such SIPs, and 

the EPA's authority and responsibility to review and approve SIP submissions in the first 

instance, as well as the EPA's authority to require improvements to SIPs if the EPA later 

determines that to be necessary for a SIP to meet CAA requirements. In addition, the 

Petition raised issues that pertain to enforcement of provisions in a SIP. The enforcement 

issues relate generally to what constitutes a violation of an emission limitation in a SIP, 

who may seek to enforce against a source for that violation, and whether the violator 

should be subject to monetary penalties as well as other forms of judicial relief for that 

violation. 

The EPA has a longstanding interpretation of the CAA with respect to the 

treatment of excess emissions during periods of startup, shutdown, or malfunction in 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 33 of 322

SIPs. This statutory interpretation has been expressed, reiterated, and elaborated upon in 

a series of guidance documents issued in 1982, 1983, 1999, and 2001. In addition, the 

EPA has applied this interpretation in individual rulemaking actions in which the EPA: 

(i) approved SIP submissions that were consistent with the EPA's interpretation;6(ii) 

disapproved SIP submissions that were not consistent with this interpretation;7(iii) itself 

promulgated regulations in FIPs that were consistent with this interpretation;8or (iv) 

issued a SIP call requiring a state to revise an impermissible SIP provision.9

The EPA's SSM Policy is a policy statement and thus constitutes guidance. As 

guidance, the SSM Policy does not bind states, the EPA, or other parties, but it does 

reflect the EPA's interpretation of the statutory requirements of the CAA. The EPA's 

evaluation of any SIP provision, whether prospectively in the case of a new provision in a 

SIP submission or retrospectively in the case of a previously approved SIP submission, 

must be conducted through a notice-and-comment rulemaking in which the EPA will 

determine whether or not a given SIP provision is consistent with the requirements of the 

CAA and applicable regulations.10

The Petition raised issues related to excess emissions from sources during periods 

 

6

See, "Approval and Promulgation of Implementation Plans; Texas; Excess Emissions 

During Startup, Shutdown, Maintenance, and Malfunction Activities," 75 FR 68989 

(Nov. 10, 2010). 

7

See, "Approval and Promulgation of State Implementation Plans; Michigan," 63 FR 

8573 (Feb. 20, 1998). 

8

See, "Federal Implementation Plan for the Billings/Laurel, MT, Sulfur Dioxide Area," 

73 FR 21418 (Apr. 21, 2008). 

9

See, "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State 

Implementation Plan Revision," 76 FR 21639 (Apr. 18, 2011). 

10 See, generally, Catawba County, North Carolina et al. v. EPA, 571 F.3d 20, 33-35 

(D.C. Cir. 2009) (upholding the EPA's process for developing and applying its guidance 

to designations). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 34 of 322

of startup, shutdown, and malfunction, and the consequences of failing to address these 

emissions correctly in SIPs. In broad terms, the Petitioner expressed concerns that the 

exemptions for excess emissions and the other types of alleged deficiencies in existing 

SIP provisions "undermine the emission limits in SIPs and threaten states' abilities to 

achieve and maintain the NAAQS, thereby threatening public health and public welfare, 

which includes agriculture, historic properties and natural areas."11 The Petitioner 

asserted that such exemptions for SSM events are "loopholes" that can allow dramatically 

higher amounts of emissions and that these emissions "can swamp the amount of 

pollutants emitted at other times."12 In addition, the Petitioner argued that these automatic 

and discretionary exemptions, as well as other SIP provisions that interfere with the 

enforcement structure of the CAA, undermine the objectives of the CAA. 

The EPA notes that the alleged SIP deficiencies are not legal technicalities. 

Compliance with the applicable requirements is intended to achieve the air quality

protection and improvement purposes and objectives of the CAA. The EPA believes that 

the results of automatic and discretionary exemptions in SIPs, and of other provisions that 

interfere with effective enforcement of SIPs, are real-world consequences that adversely

affect public health. 

As described earlier in this notice, the EPA invites public comment on a 

memorandum that supplements this notice and provides a more detailed discussion of the 

statutory, regulatory and policy background for the EPA's proposed action. The 

 

11 Petition at 2. 

12 Petition at 12. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 35 of 322

memorandum can be found in the docket for this rulemaking.

13

IV. Proposed Action in Response to Request to Rescind the EPA Policy 

Interpreting the CAA to Allow Appropriate Affirmative Defense Provisions 

A. Petitioner's Request 

The Petitioner's first request was for the EPA to rescind its SSM Policy element 

interpreting the CAA to allow affirmative defense provisions in SIPs for excess emissions 

during SSM events.14 Related to this request, the Petitioner also asked the EPA: (i) to find 

that SIPs containing an affirmative defense to monetary penalties for excess emissions 

during SSM events are substantially inadequate because they do not comply with the 

CAA; and (ii) to issue a SIP call pursuant to CAA section 110(k)(5) to require each such 

state to revise its SIP.15 Alternatively, if the EPA denies these two related requests, the 

Petitioner requested the EPA: (i) to require states with SIPs that contain such affirmative 

defense provisions to revise them so that they are consistent with the EPA's 1999 SSM 

Guidance for excess emissions during SSM events; and (ii) to issue a SIP call pursuant to 

CAA section 110(k)(5) to states with provisions inconsistent with the EPA's 

interpretation of the CAA.16 The EPA interprets this latter request to refer to the specific 

SIP provisions that the Petitioner identified in a separate section of the Petition, titled, 

"Analysis of Individual States' SSM Provisions," including specific existing affirmative 

defense provisions. 

 

13 See, Memorandum, "Statutory, Regulatory, and Policy Context for this Rulemaking," 

Feb. 4, 2013. 

14 Petition at 11. 

15 Id.

16 Petition at 12. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 36 of 322

The Petitioner requested that the EPA rescind its SSM Policy element interpreting 

the CAA to allow SIPs to include affirmative defenses for violations due to excess 

emissions during any type of SSM events because the Petitioner contended there is no 

legal basis for the policy. Specifically, the Petitioner cited to two statutory grounds, CAA 

sections 113(b) and (e), related to the type of judicial relief available in an enforcement 

proceeding and to the factors relevant to the scope and availability of such relief, that the 

Petitioner claimed would bar the approval of any type of affirmative defense provision in 

SIPs. 

In the Petitioner's view, the CAA "unambiguously grants jurisdiction to the 

district courts to determine penalties that should be assessed in an enforcement action 

involving the violation of an emissions limit."17 The Petitioner first argued that in any

judicial enforcement action in the district court, CAA section 113(b) provides that "such 

court shall have jurisdiction to restrain such violation, to require compliance, to assess 

such penalty, . . . and to award any other appropriate relief." The Petitioner reasoned that 

the EPA's SSM Policy is therefore fundamentally inconsistent with the CAA because it 

purports to remove the discretion and authority of the federal courts to assess monetary

penalties for violations if a source is shielded from monetary penalties under an 

affirmative defense provision in the approved SIP.18 The Petitioner concluded that the 

EPA's interpretation of the CAA in the SSM Policy element allowing any affirmative 

defenses is impermissible "because the inclusion of an affirmative defense provision in a 

SIP limits the courts' discretion—granted by Congress—to assess penalties for Clean Air 

 

17 Petition at 10. 

18 Id.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 37 of 322

Act violations."19

Second, in reliance on CAA section 113(e)(1), the Petitioner argued that in a 

judicial enforcement action in a district court, the statute explicitly specifies a list of 

factors that the court is to consider in assessing penalties.20 That section provides that 

either the Administrator or the court: 

...shall take into consideration (in addition to such other factors as justice 

may require) the size of the business, the economic impact of the penalty

on the business, the violator's full compliance history and good faith 

efforts to comply, the duration of the violation as established by any 

credible evidence (including evidence other than the applicable test 

method), payment by the violator of penalties previously assessed for the 

same violation, the economic benefit of noncompliance, and the 

seriousness of the violation. 

The Petitioner argued that the EPA's SSM Policy authorizes states to create 

affirmative defense provisions with criteria for monetary penalties that are inconsistent 

with the factors that the statute specifies and that the statute explicitly directs courts to 

weigh in any judicial enforcement action. In particular, the Petitioner enumerated those 

factors that it alleges the EPA's SSM Policy totally omits: (i) the size of the business; (ii) 

the economic impact of the penalty on the business; (iii) the violator's full compliance 

history; (iv) the economic benefit of noncompliance; and (v) the seriousness of the 

violation. By specifying particular factors for courts to consider, the Petitioner reasoned, 

Congress has already definitively spoken to the question of what factors are germane in 

assessing monetary penalties under the CAA for violations. The Petitioner concluded that 

the EPA has no authority to allow a state to include an affirmative defense provision in a 

SIP with different criteria to be considered in awarding monetary penalties because 

 

19 Id.

20 Petition at 11. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 38 of 322

"[p]reventing the district courts from considering these statutory factors is not a 

permissible interpretation of the Clean Air Act."21 The Petitioner drew no distinction 

between affirmative defenses for unplanned events such as malfunctions and planned 

events such as startup and shutdown. 

B. The EPA's Response 

The EPA has considered the concerns raised by the Petitioner regarding the legal 

basis under the CAA for any form of affirmative defense for violations due to excess 

emissions as contemplated in the EPA's SSM Policy. The EPA does not agree with the 

Petitioner's overarching argument that CAA section 113 prohibits any affirmative defense 

provisions in SIPs. However, the EPA has evaluated the broader legal basis that supports 

affirmative defense provisions in general and the specific affirmative defense provisions 

identified in the Petition in particular. Although the Petitioner did not distinguish between 

affirmative defense provisions for unplanned events such as malfunctions and affirmative 

defense provisions for planned events such as startup and shutdown, the EPA's evaluation 

of the legal basis for affirmative defense provisions indicates that the SSM Policy should 

differentiate between unplanned and planned events. Accordingly, the EPA is proposing 

to deny the Petition in part with respect to affirmative defenses for malfunction events 

and to grant the Petition in part with respect to affirmative defenses for planned startup 

and shutdown events. To address this issue fully, it is necessary: (i) to explain the legal 

and policy basis for affirmative defenses for malfunction events; (ii) to explain why that 

basis would not extend to startup and shutdown events; and (iii) to explain why the 

Petitioner's arguments with respect to CAA section 113 do not preclude affirmative 

 

21 Petition at 11. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 39 of 322

defense provisions for malfunction events but support the distinction between unplanned 

and planned events. 

The EPA proposes to deny the Petition with respect to affirmative defense 

provisions in SIPs applicable to sources during malfunctions. The EPA's SSM Policy has 

long recognized that there may be limited circumstances in which excess emissions are 

entirely beyond the control of the owner or operator. Thus, the EPA believes that an 

appropriately drawn affirmative defense provision recognizes that, despite diligent efforts 

by sources, such circumstances may create difficulties in meeting a legally required 

emission limitation continuously and that emission standards may be violated under 

limited circumstances beyond the control of the source. 

In accordance with CAA section 302(k), SIPs must contain emission limitations 

that "limit the quantity, rate, or concentration of emissions of air pollutants on a 

continuous basis."22 While "continuous" standards are required, there is also case law 

indicating that technology-based standards should account for the practical realities of 

technology. For example, in Essex Chemical v. Ruckelshaus, the court acknowledged that 

in setting standards under CAA section 111, "variant provisions" such as provisions 

allowing for upsets during startup, shutdown and equipment malfunction "appear 

necessary to preserve the reasonableness of the standards as a whole and that the record 

does not support the 'never to be exceeded' standard currently in force."23 Though 

 

22 Court decisions confirm that this requirement for continuous compliance prohibits 

exemptions for excess emissions during SSM events. See, e.g., Sierra Club v. EPA, 551 

F.3d 1019, 1021 (D.C. Cir. 2008); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 

(10th Cir. 2012). 

23 See, 486 F.2d 427, 433 (D.C. Cir. 1973); Portland Cement Association v. Ruckelshaus, 

486 F.2d 375 (D.C. Cir. 1973). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 40 of 322

intervening case law and amendments to the CAA call into question the relevance of this 

line of cases today, they support the EPA's view that a system that incorporates some 

level of flexibility is reasonable and consistent with the overall intent of the CAA. An 

appropriately drawn affirmative defense provision simply provides for a defense to 

monetary penalties for violations that are proven to be beyond the control of the source. 

The EPA notes that the affirmative defense does not excuse a source from injunctive 

relief, i.e., from being required to take further steps to prevent future upsets or 

malfunctions that cause harm to the public health. The EPA believes that affirmative 

defense provisions can supply flexibility both to ensure that emission limitations are 

"continuous" as required by CAA section 302(k), because any violations remain subject 

to a claim for injunctive relief, and to provide limited relief in actions for penalties for 

malfunctions that are beyond the control of the owner where the owner has taken 

necessary steps to minimize the likelihood and the extent of any such violation. This 

approach supports the reasonableness of the SIP emission limitations as a whole. SIP 

emission limitations must apply and be enforceable at all times. A narrow affirmative 

defense for malfunction events helps to meet this requirement by ensuring that even 

where there is a malfunction, the emission limitations are still applicable and enforceable 

through injunctive relief. Several courts have agreed with this approach.24

 

24 See, Luminant Generation Co. v. EPA, 699 F.3d 427 (5th Cir. 2012) (upholding the 

EPA's approval of an affirmative defense applicable during malfunctions in a SIP 

submission as a permissible interpretation of the statute under Chevron step 2 analysis); 

Mont. Sulphur & Chemical Co. v. EPA, 666 F.3d 1174, 1191-93 (9th Cir. 2012) 

(upholding the EPA's creation of an affirmative defense applicable during malfunctions 

in a FIP); Ariz. Public Service Co. v. EPA, 562 F.3d 1116, 1130 (9th Cir. 2009) 

(upholding the EPA's creation of an affirmative defense applicable during malfunctions 

in a FIP). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 41 of 322

Because the Petitioner questioned the legal basis for affirmative defense 

provisions in SIPs, the EPA wants to reiterate the basis for its recommendations 

concerning such provisions. Starting with the 1982 SSM Guidance, the EPA has made a 

series of recommendations concerning how states might address violations of SIP 

provisions consistent with CAA requirements in the event of malfunctions. In the 1982 

SSM Guidance, the EPA recommended the exercise of enforcement discretion. 

Subsequently, in the 1983 SSM Guidance, the EPA expanded on this approach by

recommending that a state could elect to adopt SIP provisions providing parameters for 

the exercise of enforcement discretion by the state's personnel. In the 1999 SSM 

Guidance, the EPA recognized the use of an affirmative defense as a permissible method 

for addressing excess emissions that were beyond the control of the owner or operator of 

the source and recommended parameters that should be included as part of such an 

affirmative defense in order to ensure that it would be available only in certain narrow 

circumstances. 

The EPA interprets the provisions in CAA section 110(a) to allow the use of 

narrowly tailored affirmative defense provisions in SIP provisions. In particular, CAA 

section 110(a) requires each state to have a SIP that provides for the attainment, 

maintenance, and enforcement of the NAAQS, protects PSD increments, protects 

visibility, and meets the other requirements of the CAA. These statutory provisions 

include the explicit requirements that SIPs contain emission limitations in accordance 

with section 110(a)(2)(A) and that these emission limitations must apply continuously in 

accordance with CAA section 302(k). The CAA is silent as to whether or not states may

elect to create affirmative defense provisions in SIPs. In light of the ambiguity created by 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 42 of 322

this silence, the EPA has interpreted the CAA to allow affirmative defense provisions in 

certain narrowly prescribed circumstances. While recognizing that there is some 

ambiguity in the statute, the EPA also recognizes that there are some limits imposed by 

the overarching statutory requirements such as the obligation that SIPs provide for the 

attainment and maintenance of the NAAQS. Thus, the EPA believes that in order for an 

affirmative defense provision to be consistent with the CAA, it: (i) has to be narrowly 

drawn to address only those excess emissions that are unavoidable; (ii) cannot interfere 

with the requirement that the emission limitations apply continuously (i.e., cannot 

provide relief from injunctive relief); and (iii) cannot interfere with the overarching 

requirements of the CAA, such as attaining and maintaining the NAAQS.25

The EPA believes this interpretation is reasonable because it does not interfere 

with the overarching goals of title I of the CAA, such as attainment and maintenance of 

the NAAQS, and at the same time recognizes that, despite best efforts of sources, 

technology is fallible. The EPA disagrees with the suggestion that an affirmative defense 

will encourage lax behavior by sources and, in fact, believes the opposite. The potential 

relief from monetary penalties for violations in many cases may serve as an incentive for 

sources to be more diligent to prevent and to minimize excess emissions in order to be 

able to qualify for the affirmative defense. An underlying premise of an affirmative 

defense provision for malfunctions is that the excess emissions are entirely beyond the 

 

25 See, e.g., "Approval and Promulgation of Implementation Plans; Texas; Excess 

Emissions During Startup, Shutdown, Maintenance, and Malfunction Activities; Notice 

of proposed rulemaking," 75 FR 26892 at 26895 (May 13, 2010). In this proposed rule, 

the EPA explained 12 specific considerations that justified the proposed approval of the 

affirmative defense for unplanned events in the state's SIP submission as consistent with 

the requirements of the CAA. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 43 of 322

control of the owner or operator of the source. First, a malfunction is a sudden and 

unavoidable event that cannot be foreseen or planned for. As explained in the 1999 SSM 

Guidance, the EPA considers malfunctions to be "sudden, unavoidable, and unpredictable 

in nature."26 In order to establish an affirmative defense for a malfunction, the 

recommended criteria specify that the source, among other things, must have been 

appropriately designed, operated, and maintained to prevent such an event, and the source 

must have taken all practicable steps to prevent and to minimize the excess emissions that 

result from the malfunction. Through the criteria recommended in the 1999 SSM 

Guidance for approvable affirmative defense provisions for malfunctions, the EPA 

reflected its view that approvable provisions should be narrowly drawn and should be 

restricted to events beyond the control of the owner or operator of the source.27 The EPA 

recommends that states consider 10 specific criteria in such affirmative defense 

provisions. 

Unlike the EPA's proposed response to the request to rescind its SSM Policy with 

respect to affirmative defenses for malfunctions, the EPA proposes to grant the Petition 

with respect to its interpretation of the CAA concerning affirmative defense for excess 

emissions during startup and shutdown events. Accordingly, the EPA is also proposing to 

issue a SIP call for SIP provisions indentified in the Petition that provide an affirmative 

defense for excess emissions during planned events, such as startup and shutdown. The 

legal and factual rationale for an affirmative defense provision for malfunctions does not 

translate to planned events such as startup and shutdown. By definition, the owner or 

 

26 See, 1999 SSM Guidance at Attachment p. 4. 

27 Id. at 3-4. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 44 of 322

operator of a source can foresee and plan for startup and shutdown events. Because these 

events are planned and predictable, the EPA believes that air agencies should be able to 

establish, and sources should be able to comply with, the applicable emission limitations 

or other control measures during these periods of time. In addition, a source can be 

designed, operated, and maintained to control and to minimize emissions during such 

normal expected events. If sources in fact cannot meet the otherwise applicable emission 

limitations during planned events such as startup and shutdown, then an air agency can 

develop specific alternative requirements that apply during such periods, so long as they

meet other applicable CAA requirements. 

Providing an affirmative defense to sources for violations that they could 

reasonably anticipate and prevent is not consistent with the theory that supports allowing 

such affirmative defenses for malfunctions, i.e., that where excess emissions are entirely

beyond the control of the owner or operator of the source it is appropriate to provide 

limited relief to claims for monetary penalties. The EPA has previously made the 

distinction that excess emissions that occur during maintenance should not be accorded 

special treatment, because sources should be expected to comply with emission 

limitations during maintenance activities as they are planned and within the control of the 

source.28 The EPA believes that same rationale applies to periods of startup and 

 

28 See, "Approval and Promulgation of Implementation Plans; Texas; Excess Emissions 

During Startup, Shutdown, Maintenance, and Malfunction Activities," 75 FR 68989 at 

68992 (Nov. 10, 2010). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 45 of 322

shutdown.29

The EPA acknowledges that its 1999 SSM Guidance explicitly recognized that 

states could elect to create affirmative defense provisions applicable to startup and 

shutdown events. However, the EPA has reevaluated the justification that could support 

an affirmative defense during these activities and now believes that the ability and 

obligation of sources to anticipate and to plan for routine events such as startup and 

shutdown negates the justification for relief from monetary penalties for violations during 

those events. Moreover, the EPA notes that the various criteria recommended for 

affirmative defenses for startup and shutdown to a large extent already mirrored those 

relevant for malfunctions, such as: (i) the event could not have been prevented through 

careful planning and design; (ii) the excess emissions were not part of a recurring pattern; 

and (iii) if the excess emissions resulted from bypassing a control measure, they were 

unavoidable to prevent loss of life, personal injury, or severe property damage.30 As a 

practical matter, many startup and shutdown events that could have met these conditions 

recommended in the 1999 SSM Guidance are likely to have been associated with 

malfunctions, and the EPA explicitly stated that if the excess emissions "occur during 

routine startup or shutdown periods due to a malfunction, then those instances should be 

treated as malfunctions." The key distinction remains, however, that normal source 

operations such as startup and shutdown are planned and predictable events. For this 

 

29 In Luminant Generation Co. v. EPA, 699 F.3d 427 (5th Cir. 2012), the court upheld the 

EPA's disapproval of an affirmative defense provision in a SIP submission that pertained 

to "planned activities," which included startup, shutdown, and maintenance. The EPA 

disapproved this provision, in part because it provided an affirmative defense for 

maintenance. The court rejected challenges to the EPA's disapproval of this provision, 

holding that under Chevron step 2, the EPA's interpretation of the CAA was reasonable. 

30 See, 1999 SSM Guidance at Attachment 5-6. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 46 of 322

reason, the EPA is proposing to revise its SSM Policy to reflect its interpretation of the 

CAA that affirmative defense provisions applicable during startup and shutdown are not 

appropriate. 

Further support for distinguishing between malfunctions and planned events such 

as startup and shutdown is to be found in the Petitioner's argument that affirmative 

defense provisions in SIPs usurp the role of courts to decide liability and to assess 

penalties for violations under CAA section 113. The Petitioner views CAA sections 

113(b) and 113(e) as statutory bars to any form of affirmative defense provision, 

regardless of the nature of the event. Rather than supporting the Petitioner's conclusion, 

however, the EPA believes that this argument illustrates why it is appropriate to allow 

affirmative defenses for malfunctions but not for planned events such as startup and 

shutdown. 

At the outset, the EPA disagrees with the Petitioner's view that CAA section 

113(b) explicitly precludes air agencies from adopting, and the EPA from approving, SIP 

emission limitations for sources that distinguish between conduct such that some 

violations should only be subject to injunctive relief rather than injunctive relief and 

monetary penalties. Section 110(a)(2)(A) of the CAA requires states to develop SIPs that 

"include enforceable emission limitations . . . as may be necessary or appropriate to meet 

the requirements of" the CAA. However, CAA section 302(k) defines "emission 

limitation" very broadly to require limits on "the quantity, rate, or concentration of 

emissions of air pollutants on a continuous basis." Significantly, the latter definition does 

not on its face preclude provisions devised by the state that may distinguish between 

violations based on the conduct of the source. The CAA is silent on whether or not a state 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 47 of 322

may include an affirmative defense provision in its SIP. The EPA believes that the CAA 

thus provides states with discretion in developing plans that meet statutory and regulatory

requirements, such as providing for attainment and maintenance of the NAAQS, as long 

as they are consistent with CAA requirements.31

The EPA believes that creating a narrowly tailored affirmative defense for 

malfunctions is within an air agency's authority, and that approving such a provision to 

make it part of the SIP is within the EPA's authority. An affirmative defense provision 

can be a means of striking a reasonable balance between the requirements of the CAA 

and the realities and limits of technology. Air agencies and the EPA must ensure 

continuous compliance but also recognize that, despite diligent efforts by sources, there 

may be limited circumstances that create difficulties in meeting applicable emission 

limitations continuously. 

The EPA's SSM Policy recognizes an approach under which air agencies may, if 

they elect, create two tiers of liability for violations due to excess emissions during 

periods of malfunction: (i) a lesser level of liability for violations for which the source 

could only be subject to injunctive relief (where it could meet the requirements for an 

affirmative defense with respect to penalties); and (ii) a higher level of liability for 

violations for which the source could be subject to both injunctive relief and monetary

 

31 States have primary responsibility for developing SIPs in accordance with CAA section 

107(a). An air agency's discretion to develop SIP provisions is not unbounded, however, 

and the EPA's responsibility under CAA section 110(k), section 110(l), and section 193, 

to review SIP submissions prospectively, and under CAA section 110(k)(5) 

retrospectively, is to determine whether the SIP provisions in fact meet all applicable 

statutory and regulatory requirements. Thus, for example, the EPA does not believe that 

an air agency has discretion to create an exemption for excess emissions during SSM 

events, because such exemption would conflict with fundamental CAA requirements for 

SIPs. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 48 of 322

penalties (where it could not meet the requirements for an affirmative defense with 

respect to penalties). 

The EPA also disagrees with the Petitioner's argument that the inclusion of 

penalty factors in CAA section 113(e) is a statutory bar to all affirmative defense 

provisions in SIPs. The EPA believes that these statutory factors apply only for violations 

for which the regulations approved into the SIP contemplate monetary penalties. A court, 

in determining whether there is a violation of the SIP provision, and whether the source 

has met the conditions for an affirmative defense, cannot change the forms of relief for 

violations provided in the approved SIP. Approval of the regulation into the SIP by the 

EPA thus affects the availability of monetary penalties for the violation in the first 

instance. The EPA reiterates, however, that such a provision would not be consistent with 

the requirements of the CAA if it did not preserve the availability for injunctive relief in 

the event of violations. Failure to provide in a SIP provision for any form of enforcement 

for excess emissions during SSM events would be equivalent to the type of provision that 

excused excess emissions during malfunction from compliance with standards under 

CAA section 112 that the court rejected in Sierra Club v. EPA.

32 The EPA's longstanding 

position with regard to SIPs is that blanket exemptions from compliance are not 

consistent with the requirements such as attainment and maintenance of the NAAQS 

because they eliminate much of the incentive that sources would otherwise have to 

minimize the likelihood of violations and to minimize the extent of a violation once it 

occurs. Elimination of potential availability of injunctive relief for violations would be 

fundamentally inconsistent with the requirement that there may be enforcement to cause 

 

32 551 F.3d 1019, 1021 (D.C. Cir. 2008). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 49 of 322

the installation of control measures, changes of operation, or other changes necessary at 

the source in order to bring the source into compliance with the applicable emission 

limitations to meet CAA requirements. 

The EPA likewise disagrees with the Petitioner's claim that the elements for 

establishing an affirmative defense in a SIP provision supplant the mandatory factors that 

Congress provided for determining the amount of penalties to be assessed in CAA section 

113(e). Under CAA section 110(a)(2), states have the responsibility to devise enforceable 

emission limitations for sources and to develop a program for their implementation and 

enforcement. The CAA does not require that air agencies treat all violations equally. In 

devising its SIP, an air agency has authority to determine what constitutes a violation and 

to distinguish between different types of violations, within the bounds allowed by the 

CAA and applicable regulations. As the EPA has long recognized in its SSM Policy, 

circumstances surrounding a given violation may justify distinguishing between those 

where injunctive relief is appropriate versus those where both injunctive relief and 

monetary penalties are appropriate. Providing an affirmative defense to monetary

penalties in certain circumstances does not negate the factors that Congress provided in 

CAA section 113(e). In the event that a source violates its emission limitations and fails 

to meet the requirements of an available defense in the SIP, then it is the court that 

determines the level of monetary penalties appropriate using the statutory factors in CAA 

section 113(e). 

The EPA notes that the provisions of CAA section 304 relevant to citizen 

enforcement provide additional support for the view that air agencies can determine that 

certain violations should not be subject to monetary penalties. Section 304(a) explicitly
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 50 of 322

provides that the court in an enforcement proceeding has jurisdiction to enforce emission 

limits, to issue orders, "and to apply any appropriate civil penalties." The EPA believes 

that monetary penalties that might otherwise be an available response to a violation 

cannot be "appropriate" if an air agency has properly created an affirmative defense 

provision that eliminates such penalties for violations under specified circumstances in 

the SIP provision that is before the court. The mere fact that CAA section 113(b) includes 

penalties as a potential form of relief for violations in general does not mean that air 

agencies must construct SIP requirements that in all instances require monetary penalties. 

As with CAA section 110(a) governing SIP provisions in general, neither CAA 

section 113(b) nor CAA 113(e) expressly addresses the availability of an affirmative 

defense. Thus, the EPA believes it is reasonable to interpret these specific provisions in 

light of the need to balance the requirement for continuous compliance with emission 

limitations in order to meet overarching goals of the statute such as attainment and 

maintenance of the NAAQS with the fact that even the most diligent source may not be 

able to meet emission limitations 100 percent of the time. The EPA has recognized that it 

is permissible for an air agency to provide narrowly drawn affirmative defense provisions 

in SIPs that provide relief from monetary penalties for violations that occur due to 

circumstances beyond the control of the source. When a source has been properly 

designed, operated, and maintained, and has taken action to prevent and to minimize the 

excess emissions, such relief may be warranted. Also, as with CAA section 110(a), the 

EPA does not believe that CAA section 113's silence with regard to affirmative defense 

provisions should be interpreted to allow broad use of such provisions during planned 

events that are within the control of the source. The enforcement provisions of the CAA 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 51 of 322

must be read in light of the goals and purposes of the provisions with which they are 

meant to ensure compliance. As provided above, the EPA believes that the use of an 

affirmative defense is appropriate only in those narrow circumstances where it is 

necessary to harmonize the competing interests of the CAA regarding continuous 

compliance and the limits or fallibility of technology. 

In summary, the EPA believes that the CAA provides air agencies in the first 

instance in their role as the developer of SIPs, and then the EPA in its role as approver of 

SIPs, some discretion in defining the substantive requirements that are necessary to attain 

and maintain the NAAQS, protect PSD increments, and protect visibility, or to meet other 

CAA requirements. Until the air agency takes action to create a SIP, or the EPA takes 

action to create a FIP, that imposes and defines the applicable emission limitations, there 

is no standard for a source to violate and thus no conduct for which a court could assess 

any penalties. The EPA believes that the CAA allows air agencies (or the EPA when it is 

promulgating a FIP) in defining emission standards to define narrowly drawn affirmative 

defenses that provide limited relief from monetary penalties but not for injunctive relief 

in specified circumstances. The EPA emphasizes that affirmative defense provisions for 

malfunctions need to be appropriately and narrowly drawn, and thus the SSM Policy

makes recommendations for the types of criteria that would make such a provision 

consistent with the requirements of the CAA. 

For the foregoing reasons, the EPA is proposing to grant the Petition in part, and 

to deny the Petition in part, with respect to the Petitioner's request that the EPA rescind 

its SSM Policy interpreting the CAA to allow affirmative defense provisions in SIPs for 

excess emissions during SSM events. In addition, the EPA is proposing to grant the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 52 of 322

Petition in part, and to deny the Petition in part, with respect to the Petitioner's request 

that the EPA issue SIP calls for those affirmative defense provisions in specific SIP 

provisions identified in the Petition. The EPA requests comment on this proposed action. 

As discussed in section VII.B of this notice, the EPA is also restating its recommended 

criteria for approvable affirmative defenses for malfunctions in SIP provisions consistent 

with CAA requirements. Further, as discussed in section IX of this notice, the EPA is 

proposing to grant or to deny the Petition with respect to the specific SIP provisions 

identified by the Petitioner as inconsistent with the CAA. 

V. Proposed Action in Response to Request for the EPA's Review of Specific 

Existing SIP Provisions for Consistency with CAA Requirements 

A. Petitioner's Request 

The Petitioner's second request was for the EPA to find that SIPs "containing an 

SSM exemption or a provision that could be interpreted to affect EPA or citizen 

enforcement are substantially inadequate to comply with the requirements of the Clean 

Air Act."33 In addition, the Petitioner requested that if the EPA finds such defects in 

existing SIPs, the EPA "issue a call for each of the states with such a SIP to revise it in 

conformity with the requirements or otherwise remedy these defective SIPs."34

In support of this request, the Petitioner expressed concern that many SIPs contain 

provisions that are inconsistent with the requirements of the CAA. According to the 

Petitioner, these provisions fall into two general categories: (1) exemptions for excess 

emissions by which such emissions are not treated as violations; and (2) enforcement 

 

33 Petition at 14. 

34 Id.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 53 of 322

discretion provisions that may be worded in such a way that a decision by the state not to 

enforce against a violation could be construed by a court to bar enforcement by the EPA 

under CAA section 113, or by citizens under CAA section 304. 

First, the Petitioner expressed concern that many SIPs have either automatic or 

discretionary exemptions for excess emissions that occur during periods of startup, 

shutdown, or malfunction. Automatic exemptions are those that, on the face of the SIP 

provision, provide that any excess emissions during such events are not violations even 

though the source exceeds the otherwise applicable emission limitations. These 

provisions preclude enforcement by the state, the EPA, or citizens, because by definition 

these excess emissions are defined as not violations. Discretionary exemptions or, more 

correctly, exemptions that may arise as a result of the exercise of "director's discretion" 

by state officials, are exemptions from an otherwise applicable emission limitation that a 

state may grant on a case-by-case basis with or without any public process or approval by

the EPA, but that do purport to bar enforcement by the EPA or citizens. The Petitioner 

argued that "[e]xemptions that may be granted by the state do not comply with the 

enforcement scheme of title I of the Act because they undermine enforcement by the EPA 

under section 113 of the Act or by citizens under section 304." 

The Petitioner explained that all such exemptions are fundamentally at odds with 

the requirements of the CAA and with the EPA's longstanding interpretation of the CAA 

with respect to excess emissions in SIPs. SIPs are required to include emission limitations 

designed to provide for the attainment and maintenance of the NAAQS and for protection 

of PSD increments. The Petitioner emphasized that the CAA requires that such emission 

limitations be "continuous" and that they be established at levels that achieve sufficient 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 54 of 322

emissions control to meet the required CAA objectives when adhered to by sources. 

Instead, the Petitioner contended, exemptions for excess emissions often result in realworld emissions that are far higher than the level of emissions envisioned and planned for 

in the SIP. Citing the EPA's own guidance and past administrative actions, the Petitioner 

explained that exemptions from otherwise applicable emission limitations can allow large 

amounts of additional emissions that are not accounted for in SIPs and that exemptions 

thus "create large loopholes to the Act's fundamental requirement that a SIP must provide 

for attainment and maintenance of the NAAQS and PSD increments." 

Second, the Petitioner expressed concern that many SIPs have provisions that may

have been intended to govern only the exercise of enforcement discretion by the state's 

own personnel but are worded in a way that could be construed to preclude enforcement 

by the EPA or citizens if the state elects not to enforce against the violation. The 

Petitioner contended that "any SIP provision that purports to vest the determination of 

whether or not a violation of the SIP has occurred with the state enforcement authority is 

inconsistent with the enforcement provisions of the Act." In support of this contention, 

the Petitioner quoted from the EPA's recent action to rectify such a provision in the Utah 

SIP: 

. . . SIP provisions that give exclusive authority to a state to determine 

whether an enforcement action can be pursued for an exceedance of an 

emission limit are inconsistent with the CAA's regulatory scheme. EPA 

and citizens, and any court in which they seek to file an enforcement 

claim, must retain the authority to independently evaluate whether a 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 55 of 322

source's exceedance of an emission limit warrants enforcement action.35

After articulating these overarching concerns with existing SIP provisions, the 

Petitioner requested that the EPA evaluate specific SIP provisions identified in the 

separate section of the Petition titled, "Analysis of Individual States' SSM Provisions."36

In that section, the Petitioner identified specific provisions in the SIPs of 39 states that the 

Petitioner believed to be inconsistent with the requirements of the CAA and explained in 

detail the basis for that belief. In the conclusion section of the Petition, the Petitioner 

listed the SIP provisions in each state for which it seeks a specific remedy. 

B. The EPA's Response 

In general, the EPA agrees with key statements of the Petitioner. The EPA's 

longstanding interpretation of the CAA is that automatic exemptions from emission 

limitations in SIPs are impermissible because they are inconsistent with the fundamental 

requirements of the CAA. The EPA has reiterated this point in its guidance documents 

and in rulemaking actions numerous times. The EPA has also acknowledged that it 

previously approved some SIP provisions that provide such exemptions in error and 

encouraged states to rectify them.37

The EPA also has a longstanding interpretation of the CAA that does not allow 

"director's discretion" provisions in SIPs if they provide unbounded discretion to allow 

what would amount to a case-specific revision of the SIP without meeting the statutory

 

35 See, "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State 

Implementation Plan Revision; Notice of proposed rulemaking," 75 FR 70888 at 70892-

93 (Nov. 19, 2010) (proposed SIP call, inter alia, to rectify an enforcement discretion 

provision that in fact appeared to bar enforcement by the EPA or citizens if the state 

decided not to enforce). 

36 Petition at 17. 

37 See, e.g., 1982 SSM Guidance at 1. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 56 of 322

requirements of the CAA for SIP revisions. Moreover, the CAA would not allow 

approval of a SIP provision that provided director's discretion to create discretionary

exemptions for violations when the CAA would not allow such exemptions in the first 

instance. 

In addition, the EPA's longstanding interpretation of the CAA is that SIPs may

contain provisions concerning "enforcement discretion" by the air agency's own 

personnel, but such provisions cannot bar enforcement by the EPA or through a citizen

suit.

38 In the event such a provision could be construed by a court to preclude EPA or 

citizen enforcement, that provision would be at odds with fundamental requirements of 

the CAA pertaining to enforcement. Although the EPA does not agree with the Petitioner 

concerning all affirmative defense provisions in SIPs, the EPA does agree that such 

provisions have to meet CAA requirements. 

The EPA also agrees that automatic exemptions, discretionary exemptions via 

director's discretion, ambiguous enforcement discretion provisions that may be read to 

preclude EPA or citizen enforcement, and inappropriate affirmative defense provisions 

can interfere with the overarching objectives of the CAA, such as attaining and 

maintaining the NAAQS, protection of PSD increments, and protection of visibility. Such 

provisions in SIPs can interfere with effective enforcement by air agencies, the EPA, and 

the public to assure that sources comply with CAA requirements, contrary to the 

fundamental enforcement structure provided in CAA sections 113 and 304. 

The EPA's agreement on these broad principles, however, does not necessarily

mean that the EPA agrees with the Petitioner's views as to each of the specific SIP 

 

38 See, e.g., 1983 SSM Guidance at Attachment p. 2. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 57 of 322

provisions identified as problematic in the Petition. The EPA has undertaken a 

comprehensive review of those specific SIP provisions to determine whether they are 

consistent with CAA requirements, and if they are not consistent, whether the provisions 

are substantially inadequate to meet CAA requirements and thus warrant action to rectify. 

The EPA has carefully evaluated the concerns expressed by the Petitioner with 

respect to each of the identified SIP provisions and has considered the specific remedy

sought by the Petitioner. In many instances, the EPA tentatively concurs with the 

Petitioner's analysis of the provision in question and accordingly is proposing to grant the 

Petition with respect to that provision and simultaneously proposing to make a finding of 

substantial inadequacy and to issue a SIP call to rectify the SIP inadequacy. In other 

instances, however, the EPA tentatively disagrees with the Petitioner's analysis of the 

provision and thus is proposing to deny the Petition with respect to that provision and to 

take no further action. 

The EPA's evaluation of each of the provisions identified in the Petition is 

summarized in section IX of this notice. For the reasons discussed in section IX of this 

notice, the EPA is proposing to grant the Petition in part, and to deny the Petition in part, 

with respect to the specific existing SIP provisions for which the Petitioner requested a 

remedy. The EPA requests comment on the proposed actions on these specific SIP 

provisions. 

VI. Proposed Action in Response to Request that the EPA Limit SIP Approval to 

the Text of State Regulations and Not Rely upon Additional Interpretive Letters 

from the State 

A. Petitioner's Request 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 58 of 322

The Petitioner's third request was that when the EPA evaluates SIP revisions 

submitted by a state, the EPA should require "all terms, conditions, limitations and 

interpretations of the various SSM provisions to be reflected in the unambiguous 

language of the SIPs themselves."39 The Petitioner expressed concern that the EPA has 

previously approved SIP submissions with provisions that "by their plain terms" do not 

appear to comply with the EPA's interpretation of CAA requirements embodied in the 

SSM Policy and has approved those SIP submissions in reliance on separate "letters of 

interpretation" from the state that construe the provisions of the SIP submission itself to 

be consistent with the SSM Policy.

40 Because of this reliance on interpretive letters, the 

Petitioner argued that "such constructions are not necessarily apparent from the text of 

the provisions and their enforceability may be difficult and unnecessarily complex and 

inefficient."41

In support of this request, the Petitioner alleged that past SIP approvals related to 

Oklahoma and Tennessee illustrate the practical problems that can arise from reliance on 

interpretive letters. With respect to Oklahoma, the Petitioner asserted that a 1984 

approval of a SIP submission from that state addressing SSM provisions required two 

letters of interpretation from the state in order for the EPA to determine that the actual 

regulatory text in the SIP submission was sufficiently consistent with CAA requirements

 

39 Petition at 16. 

40 Petition at 14. 

41 Petition at 15. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 59 of 322

pertaining to SSM provisions.42 The Petitioner conceded that the Federal Register notices 

for the proposed and final actions to approve the Oklahoma SIP submission did quote 

from the state's letters but expressed concern that those letters were not actually 

"promulgated as part of the Oklahoma SIP." 

With respect to Tennessee, the Petitioner pointed to a more recent action 

concerning the redesignation of the Knoxville area to attainment for the 1997 8-hour 

ozone NAAQS.43 In this action, the EPA evaluated whether the SIP for that state met 

requirements necessary for redesignation from nonattainment to attainment in accordance 

with CAA section 107(d)(3).44 Again, the Petitioner noted that in order to complete that 

redesignation action, the EPA had to request that both the state and the local air planning 

officials confirm officially that the existing SIP provisions do not in fact provide an 

exemption for excess emissions during SSM events and that the provisions should not be 

interpreted to do so. The implication of the Petitioner's observation is that if the SIP 

provisions had been clear and unambiguous in the first instance, interpretive letters would 

not have been necessary. 

By contrast, the Petitioner pointed to the more recent SIP call action for Utah in 

which the EPA itself noted that it was unclear why the EPA had originally approved a 

particular SIP provision relevant to SSM events.45 Specifically, the Petitioner quoted the 

 

42 See, "Revision to Oklahoma Regulation 1.5 – Reports Required, Excess Emissions 

During Startup, Shutdown and Malfunction of Equipment," 49 FR 3084 (Jan. 25, 1984). 

At the time of the proposed and final action, the operative EPA guidance was the 1983 

SSM Guidance. 

43 Petition at 15. 

44 See, "Redesignation of the Knoxville 1997 8-Hour Ozone Nonattainment Area to 

Attainment," 76 FR 12587 (Mar. 8, 2011). 

45 Petition at 15-16. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 60 of 322

EPA's own statement that "thirty years later, it is not clear how EPA reached the 

conclusion that exemptions granted by Utah would not apply as a matter of federal law or 

whether a court would honor EPA's interpretation . . . "46 The Petitioner argued that this 

situation where the EPA itself was unable to ascertain why a SIP provision was 

previously approved as meeting CAA requirements illustrates the concern that "the state's 

interpretation of its regulations may (or may not) be known by parties attempting to 

enforce the SIP decades after the provisions were created."47

From these examples, the Petitioner drew the conclusion that reliance on letters of 

interpretation from the state, even if reflected in the Federal Register notice as part of the 

explicit basis for the SIP approval, is insufficient. The Petitioner argued that such 

interpretations, if they are not plain on the face of the state regulations themselves, should 

be set forth in the SIP as reflected in the Code of Federal Regulations. The Petitioner 

advocated that all parties should be able to rely on the terms of the SIP as reflected in the 

Code of Federal Regulations, or alternatively on the SIP as shown on an EPA Internet 

webpage, rather than having to rely on other interpretive letters that may be difficult to 

locate. The Petitioner's preferred approach, however, was that "all terms, conditions, 

 

46 See, "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State 

Implementation Plan Revision; Notice of proposed rulemaking," 75 FR 70888 at 70890 

(Nov. 19, 2010). 

47 Petition at 16. The Petitioner assumed that the original SIP action was one in which the 

EPA must have relied on an interpretive letter from the state as a basis for the prior SIP 

approval. In fact, however, the EPA recognized that the EPA statement in the prior final 

action approving the SIP revision in 1980 concerning federal law superseding incorrect 

state law embodied in the SIP was incorrect. Moreover, subsequent case law has 

illustrated that courts will not decide that CAA requirements automatically override 

existing SIP provisions, regardless of whether those SIP provisions met CAA 

requirements at the time of the approval or since. See, Sierra Club, et al. v. Georgia 

Power Co., 443 F.3d 1346, 1354 (11th Cir. 2006). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 61 of 322

limitations and interpretations of the various SSM provisions be reflected in the 

unambiguous language of the SIPs themselves." 

B. The EPA's Response 

The EPA agrees with the core principle advocated by the Petitioner, i.e., that the 

language of regulations in SIPs that pertain to SSM events should be clear and 

unambiguous. This is necessary as a legal matter but also as a matter of fairness to all 

parties, including the regulated entities, the regulators, and the public. In some cases, the 

lack of clarity may be so significant that amending the regulation may be warranted to 

eliminate the potential for confusion or misunderstanding about applicable legal 

requirements that could interfere with compliance or enforcement. Indeed, as noted by

the Petitioner, the EPA has requested that states clarify ambiguous SIP provisions when 

the EPA has subsequently determined that to be necessary.

48

However, the EPA believes that the use of interpretive letters to clarify perceived 

ambiguity in the provisions in a SIP submission is a permissible, and sometimes 

necessary, approach under the CAA. Used correctly, and with adequate documentation in 

the Federal Register and the docket for the underlying rulemaking action, reliance on 

interpretive letters can serve a useful purpose and still meet the enforceability concerns of 

the Petitioner. Regulated entities, regulators, and the public can readily ascertain the 

existence of interpretive letters relied upon in the EPA's approval that would be useful to 

resolve any perceived ambiguity. By virtue of being part of the stated basis for the EPA's 

approval of that provision, the interpretive letters necessarily establish the correct 

 

48 See, e.g., "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah 

State Implementation Plan Revision," 76 FR 21639 at 21648 (Apr. 18, 2011). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 62 of 322

interpretation of any arguably ambiguous SIP provision. 

In addition, reliance on interpretive letters to address concerns about perceived 

ambiguity can often be the most efficient and timely way to resolve concerns about the 

correct meaning of regulatory provisions. Both air agencies and the EPA are required to 

follow time- and resource-intensive administrative processes in order to develop and 

evaluate SIP submissions. It is reasonable for the EPA to exercise its discretion to use 

interpretive letters to clarify concerns about the meaning of regulatory provisions, rather 

than to require air agencies to reinitiate a complete administrative process merely to 

resolve perceived ambiguity in a provision in a SIP submission.49 In particular, the EPA 

considers this an appropriate approach where reliance on such an interpretive letter 

allows the air agency and the EPA to put into place SIP provisions that are necessary to 

meet important CAA objectives and for which unnecessary delay would be 

counterproductive. For example, where an air agency is adopting emission limitations for 

purposes of attaining the NAAQS in an area, a timely letter from the air agency clarifying 

that an enforcement discretion provision is applicable only to air agency enforcement 

personnel and has no bearing on enforcement by the EPA or the public could help the 

area reach attainment more expeditiously than requiring the air agency to undertake a 

time-consuming administrative process to make a minor change in the regulatory text. 

Thus, to the extent that the Petitioner intended the Petition on this issue to be a 

request for the EPA never to use interpretive letters as part of the basis for approval of 

 

49 CAA section 110(k) directs the EPA to act on SIP submissions and to approve those 

that meet statutory and regulatory requirements. Implicit in this authority is the 

discretion, through appropriate notice-and-comment rulemaking, to determine whether or 

not a given SIP provision meets such requirements, in reliance on the information that the 

EPA considers relevant for this purpose. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 63 of 322

any SIP submission, the EPA disagrees with the Petitioner and accordingly is proposing 

to deny the request. The EPA notes that it is already the EPA's practice to assure that any 

interpretive letters are correctly and adequately reflected in the Federal Register and are 

included in the rulemaking docket for a SIP approval. 

There are multiple reasons why the EPA does not agree with the Petitioner with 

respect to the alleged inadequacy of using interpretive letters to clarify specific 

ambiguities SIP regulations, provided this process is done correctly. First, under section 

107(a), the CAA gives air agencies both the authority and the primary responsibility to 

develop SIPs that meet applicable statutory and regulatory requirements. However, the 

CAA generally does not specify exactly how air agencies are to meet the requirements 

substantively, nor does the CAA specify that air agencies must use specific regulatory

terminology, phraseology, or format, in provisions submitted in a SIP submission. Air 

agencies each have their own requirements and practices with respect to rulemaking, 

making flexibility toward terminology on the EPA's part appropriate. 

As a prime example relevant to the SSM issue, CAA section 110(a)(2)(A) 

requires that a state's SIP shall include "enforceable emission limitations and other 

control measures, means, or techniques (including economic incentives such as fees, 

marketable permits, and auctions of emissions rights) as well as schedules and timetables 

for compliance as may be necessary or appropriate to meet the applicable requirements 

of" the CAA. Section 302(k) of the CAA further defines the term "emission limitation" in 

important respects but nevertheless leaves room for variations of approach: 

...a requirement established by the State or Administrator which limits the 

quantity, rate, or concentration of emissions of air pollutants on a 

continuous basis, including any requirement related to the operation or 

maintenance of a source to assure continuous emissions reduction, and any 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 64 of 322

design, equipment, work practice or operational standard promulgated 

under [the CAA]. 

Even this most basic requirement of SIPs, the inclusion of enforceable "emission 

limitations," allows air agencies discretion in how to structure or word the emission 

limitations, so long as the provisions meet fundamental legal requirements.50 Thus, by the 

explicit terms of the statute and by design, air agencies generally have considerable 

discretion in how they elect to structure or word their state regulations submitted to meet 

CAA requirements in a SIP. 

Second, under CAA section 110(k), the EPA has both the authority and the 

responsibility to assess whether a SIP submission meets applicable CAA and regulatory

requirements. Given that air agencies have authority and discretion to structure or word 

SIP provisions as they think most appropriate so long as they meet CAA and regulatory

requirements, the EPA's role is to evaluate whether those provisions in fact meet those 

legal requirements.51 Necessarily, this process entails the exercise of judgment 

concerning the specific text of regulations, with regard both to content and to clarity. 

Because actions on SIP submissions are subject to notice-and-comment rulemaking, there 

is also the opportunity for other parties to identify SIP provisions that they consider 

problematic and to bring to the EPA's attention any concerns about ambiguity in the 

 

50 The EPA notes that notwithstanding discretion in wording in regulatory provisions, 

many words have specific recognized legal meaning whether by statute, regulation, case 

law, dictionary definition, or common usage. For example, the term "continuous" has a 

specific meaning that must be complied with substantively, however the state may elect 

to word its regulatory provisions. 

51 See, e.g., Luminant Generation Co. v. EPA, 699 F.3d 427 (5th Cir. 2012) (upholding 

the EPA's disapproval in part of affirmative defense provision with unclear regulatory

text); US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 (10th Cir. 2012) (upholding the 

EPA's issuance of a SIP call to clarify a provision that could be interpreted in a way

inconsistent with CAA requirements). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 65 of 322

meaning of the SIP provisions under evaluation. 

Third, careful review of regulatory provisions in a SIP submission can reveal 

areas of potential ambiguity. It is essential, however, that regulations are sufficiently 

clear that regulated entities, regulators, and the public can understand the SIP 

requirements. Where the EPA perceives ambiguity in draft SIP submissions, it endeavors 

to resolve those ambiguities through interactions with the air agency in question even in 

advance of the SIP submission. On occasion, however, there may still remain areas of 

regulatory ambiguity in a SIP submission's provisions that the EPA identifies, either 

independently or as a result of public comments on a proposed action, for which 

resolution is both appropriate and necessary as part of the rulemaking action.

In such circumstances, the ambiguity may be so significant as to require the air 

agency to revise the regulatory text in its SIP submission in order to resolve the concern. 

At other times, however, the EPA may determine that with adequate explanation from the 

state, the provision is sufficiently clear and complies with applicable CAA and regulatory

requirements. In some instances, the air agency may supply that extra explanation in an 

official letter from the appropriate authority to resolve any potential ambiguity. When the 

EPA bases its approval of a SIP submission in reliance on the air agency's official 

interpretation of the provision, that reading is explicitly incorporated into the EPA's 

action and is memorialized as the proper intended reading of the provision. 

For example, in the Knoxville redesignation action that the Petitioner noted, the 

EPA took careful steps to ensure that the perceived ambiguity was substantively resolved 

and fully reflected in the rulemaking record, i.e., through inclusion of the interpretive 

letters in the rulemaking docket, quoting relevant passages from the letters in the Federal 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 66 of 322

Register, and carefully evaluating the areas of potential ambiguity in response to public 

comments on a provision-by-provision basis.

Finally, the EPA notes that while it is possible to reflect or incorporate 

interpretive letters in the regulatory text of the CFR, there is no requirement to do so in 

all actions and there are other ways for the public to have a clear understanding of the 

content of the SIP. First, for each SIP, the CFR contains a list or table of actions that 

reflects the various components of the approved SIP, including information concerning 

the submission of, and the EPA's action approving, each component. With this 

information, interested parties can readily locate the actual Federal Register notice in 

which the EPA will have explained the basis for its approval in detail, including any 

interpretive letters that may have been relied upon to resolve any potential ambiguity in 

the SIP provisions. With this information, the interested party can also locate the docket 

for the underlying rulemaking and obtain a copy of the interpretive letter itself. Thus, if 

there is any debate about the correct reading of the SIP provision, either at the time of the 

EPA's approval or in the future, it will be possible to ascertain the mutual understanding 

of the air agency and the EPA of the correct reading of the provision in question at the 

time the EPA approved it into the SIP. Most importantly, regardless of whether the 

content of the interpretive letter is reflected in the CFR or simply described in the 

Federal Register preamble accompanying the EPA's approval of the SIP submission, this 

mutual understanding of the correct reading of that provision upon which the EPA relied

will be the reading that governs, should that later become an issue. 

The EPA notes that the existence of, or content of, an interpretive letter that is 

part of the basis for the EPA's approval of a SIP submission is in reality analogous to 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 67 of 322

many other things related to that approval. Not everything that may be part of the basis 

for the SIP approval in the docket, including the proposal or final preambles, the 

technical support documents, responses to comments, technical analyses, modeling 

results, or docket memoranda, will be restated verbatim, incorporated into, or referenced 

in the CFR. These background materials remain part of the basis for the SIP approval and 

remain available should they be needed for any purpose. To the extent that there is any

question about the correct interpretation of an ambiguous provision in the future, an 

interested party will be able to access the docket to verify the correct meaning of SIP 

provisions. 

With regard to the Petitioner's concern that either actual or alleged ambiguity in a 

SIP provision could impede an effective enforcement action, the EPA believes that its 

current process for evaluating SIP submissions and resolving potential ambiguities, 

including the reliance on interpretive letters in appropriate circumstances with correct 

documentation in the rulemaking action, minimizes the possibility for any such ambiguity 

in the first instance. To the extent that there remains any perceived ambiguity, the EPA 

concludes that regulated entities, regulators, the public, and ultimately the courts, have 

recourse to the administrative record to shed light on and resolve any such ambiguity as 

explained above. 

For the foregoing reasons, the EPA is proposing to deny the Petition on this issue 

concerning reliance on interpretive letters in actions on SIP submissions. The EPA 

requests comment on this proposed action. 

VII. Clarifications, Reiterations, and Revisions to the EPA's SSM Policy 

A. Applicability of Emission Limitations During Periods of Startup and Shutdown 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 68 of 322

The EPA's evaluation of the Petition indicates that there is a need to clarify the 

SSM Policy with respect to excess emissions that occur during periods of planned startup 

and shutdown or other planned events. The significant number of SIP provisions 

identified in the Petition that create automatic or discretionary exemptions from emission 

limitations during startup and shutdown suggests that there may be a misunderstanding 

concerning whether the CAA permits such exemptions. Although the EPA's stated 

position on this issue has been consistent since 1977, ambiguity in some statements in the 

EPA's guidance documents may have left the misimpression that such exemptions are 

consistent with the requirements of the CAA. Recent court decisions have indicated that 

such exemptions for excess emissions during periods of startup and shutdown are not in 

fact permissible under the CAA. Thus, in acting upon the Petition the EPA is clarifying 

its interpretation of the requirements of the CAA to forbid exemptions from otherwise 

applicable emission limitations for excess emissions during planned events such as 

startup and shutdown in SIP provisions. 

The EPA believes that any misimpression that exemptions for excess emissions 

are permissible during planned events such as startup and shutdown may have begun with 

a statement in the 1983 SSM Guidance. In this guidance, the EPA distinguished between 

excess emissions during unforeseeable events like malfunctions and foreseeable events 

like startup and shutdown. In drawing distinctions between these broad categories of 

events, the EPA stated: 

Startup and shutdown of process equipment are part of the normal 

operation of a source and should be accounted for in the planning, design 

and implementation of operating procedures for the process and control 

equipment. Accordingly, it is reasonable to expect that careful and prudent 

planning and design will eliminate violations of emission limitations 

during such periods. However, for a few sources there may exist 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 69 of 322

infrequent short periods of excess emissions during startup and shutdown 

which cannot be avoided. Excess emissions during these infrequent short 

periods need not be treated as violations providing the source adequately

shows that the excess could not have been prevented through careful 

planning and design and that bypassing of control equipment was 

unavoidable to prevent loss of life, personal injury, or severe property 

damage (emphasis added).52

The phrase "need not be treated as violations" may have been misunderstood to be 

a statement that the CAA would allow SIP provisions that provide an exemption for the 

resulting excess emissions, thereby defining the excess emissions as not a violation of the 

applicable emission limitations. The EPA did not intend to suggest that SIP provisions 

that included an actual exemption for excess emissions during startup and shutdown 

events would be consistent with the CAA; the EPA made this statement in the context of 

whether air agencies should exercise enforcement discretion and more specifically

whether air agencies could elect to have SIP provisions that embodied their own exercise 

of enforcement discretion in such circumstances. As with any such SIP provisions 

addressing parameters of the air agency's own exercise of enforcement discretion, that 

exercise of discretion cannot purport to bar enforcement by the EPA or through a citizen

suit for excess emissions that must be treated as violations to meet CAA requirements. 

Thus, the use of the phrase "need not be treated as violations" was at a minimum 

confusing because it seemed to go to the definition of what could constitute a "violation" 

in a SIP provision rather than to whether the air agency might or might not elect to 

exercise enforcement discretion in such circumstances. 

The EPA believes that additional confusion may have resulted from ambiguity in 

the 1999 SSM Guidance. That document contained an entire section devoted to "source 

 

52 See, 1983 SSM Guidance at Attachment p. 3. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 70 of 322

category specific rules for startup and shutdown." In explaining its intentions in providing 

that section of the guidance, the EPA stated: 

Finally, EPA is clarifying how excess emissions that occur during periods 

of startup and shutdown should be addressed. In general, because excess 

emissions that occur during these periods are reasonably foreseeable, they

should not be excused. However, EPA recognizes that, for some source 

categories, even the best available emissions control systems might not be 

consistently effective during startup or shutdown periods. [For certain 

sources in certain areas] these technological limitations may be addressed 

in the underlying standards themselves through narrowly-tailored SIP 

revisions that take into account the potential impacts on ambient air 

quality caused by the inclusion of these allowances (emphasis added).53

The phrase "may be addressed ... in narrowly-tailored SIP revisions" may have 

been misunderstood to suggest that the CAA would allow SIP provisions that provide an 

actual exemption for the resulting excess emissions and thus not treat the emissions as a 

violation of the applicable emission limitations. The EPA did not intend to suggest that 

an exemption would be permissible; the EPA intended to suggest that the air agency

might elect to design special emission limitations or other control measures that applied 

to the sources in question during startup and shutdown, as indicated by the earlier phrase 

that the excess emissions "should not be excused." 

In addition, Section III.A of the 1999 SSM Guidance recommended very specific 

criteria that air agencies should consider including as part of any SIP provision that was 

intended to apply to sources during startup and shutdown in lieu of the otherwise 

applicable emission limitations.54 In order to revise the otherwise applicable emission 

limitation in the SIP, the EPA recommended that in order to be approvable (i.e., meet 

CAA requirements), the new special requirements applicable to the source during startup 

 

53 See, 1999 SSM Guidance at 3. 

54 See, 1999 SSM Guidance at Attachment 3-4. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 71 of 322

and shutdown should be narrowly tailored and take into account considerations such as 

the technological limitations of the specific source category and the control technology

that is feasible during startup and shutdown. However, the 1999 SSM Guidance should 

have been clearer that the SIP revisions under discussion could not create an exemption 

for emissions during startup and shutdown, but rather specific emission limitations or 

control measures that would apply during those periods. Also unstated but implicit was 

the requirement that any such SIP revision that would alter the existing applicable 

emission limitations for a source during startup and shutdown would be subject to the 

same requirements as any other SIP submission, i.e., compliance with CAA sections 

110(a), 110(k), 110(l), 193, and any other CAA provision substantively germane to the 

SIP revision. 

The EPA concludes that the CAA does not allow SIP provisions that include 

exemptions from emission limitations during planned events such as startup and 

shutdown. Instead, the CAA would allow special emission limitations or other control 

measures or control techniques that are designed to minimize excess emissions during 

startup and shutdown. The EPA continues to recommend the seven specific criteria 

enumerated in Section III.A of the Attachment to the 1999 SSM Guidance as appropriate 

considerations for SIP provisions that apply to startup and shutdown. These criteria are: 

(1) The revision must be limited to specific, narrowly defined source categories 

using specific control strategies (e.g., cogeneration facilities burning natural gas and 

using selective catalytic reduction);

(2) Use of the control strategy for this source category must be technically 

infeasible during startup or shutdown periods;
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 72 of 322

(3) The frequency and duration of operation in startup or shutdown mode must be 

minimized to the maximum extent practicable;

(4) As part of its justification of the SIP revision, the state should analyze the 

potential worst-case emissions that could occur during startup and shutdown;

(5) All possible steps must be taken to minimize the impact of emissions during 

startup and shutdown on ambient air quality;

(6) At all times, the facility must be operated in a manner consistent with good 

practice for minimizing emissions, and the source must have used best efforts regarding 

planning, design, and operating procedures to meet the otherwise applicable emission 

limitation; and

(7) The owner or operator's actions during startup and shutdown periods must be 

documented by properly signed, contemporaneous operating logs, or other relevant 

evidence.

The EPA's evaluation of the Petition also indicates that there is a need to reiterate 

the SSM Policy with respect to excess emissions that occur during other periods of 

normal source operation in addition to during periods of startup and shutdown. A number 

of SIP provisions identified in the Petition create automatic or discretionary exemptions 

from otherwise applicable emission limitations during periods such as "maintenance," 

"load change," "soot blowing," "on-line operating changes," or other similar normal 

modes of operation. Like startup and shutdown, the EPA considers all of these to be 

phases of normal operation at a source, for which the source can be designed, operated, 

and maintained in order to meet the applicable emission limitations and during which a 

source should be expected to control and minimize emissions. Accordingly, exemptions 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 73 of 322

for emissions during these periods of normal source operation are not consistent with 

CAA requirements. Excess emissions during planned and predicted periods should be 

treated as violations of the applicable emission limitations. 

B. Affirmative Defense Provisions During Periods of Malfunction 

The EPA's evaluation of the Petition indicates that it would be helpful to reiterate 

the SSM Policy with respect to affirmative defense provisions that would be consistent 

with CAA requirements for malfunctions. Many of the specific SIP provisions identified 

in the Petition may have been intended to operate as affirmative defenses, but 

nevertheless they have significant deficiencies. In particular, many of the SIP provisions 

at issue stipulate that if the source meets the conditions specified, then the excess 

emissions would not be considered violations for any purpose, not merely with respect to 

monetary penalties. This is contrary to the EPA's interpretation of the CAA. In addition, 

many of the SIP provisions identified in the Petition that resemble affirmative defense 

provisions do not have sufficiently robust criteria to assure that the affirmative defense is 

available only for events that are entirely beyond the control of the owner or operator of 

the source and events where the owner or operator of the sources has made all practicable 

efforts to comply. 

After consideration of the issues raised by the Petition and the wide variety of 

existing SIP provisions the Petitioner alleged are deficient, the EPA wants to reiterate the 

criteria that it considers appropriate for approvable affirmative defense provisions in 

SIPs. In addition, to provide a clear illustration of regulatory text that embodies these 

criteria effectively, the EPA also wishes to provide an example of the regulatory 

provisions that the EPA employs in its own regulations to serve this purpose effectively 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 74 of 322

and consistently with CAA requirements. 

The criteria that the EPA recommends for approvable affirmative defense 

provisions for excess emissions for malfunctions consistent with CAA requirements 

remain essentially the same as stated in the 1999 SSM Guidance.55 We repeat them here. 

Most importantly, a valid affirmative defense for excess emissions due to a malfunction 

can only be effective with respect to monetary penalties, not with respect to potential 

injunctive relief. Second, the affirmative defense should be limited only to malfunctions 

that are sudden, unavoidable, and unpredictable. Third, a valid affirmative defense 

provision must provide that the defendant has the burden of proof to demonstrate all of 

the elements of the defense to qualify. This demonstration has to occur in a judicial or 

administrative proceeding where the merits of the affirmative defense are independently 

and objectively evaluated. The specific criteria that the EPA recommends for an 

affirmative defense provision for malfunctions to be consistent with CAA requirements 

are: 

(1) The excess emissions were caused by a sudden, unavoidable breakdown of 

technology, beyond the control of the owner or operator; 

(2) The excess emissions (a) did not stem from any activity or event that could 

have been foreseen and avoided, or planned for, and (b) could not have been avoided by

better operation and maintenance practices; 

(3) To the maximum extent practicable the air pollution control equipment or 

processes were maintained and operated in a matter consistent with good practice for 

minimizing emissions; 

 

55 See, 1999 SSM Guidance at Attachment 3-4. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 75 of 322

(4) Repairs were made in an expeditious fashion when the operator knew or 

should have known that applicable emission limitations were being exceeded. Off-shift 

labor and overtime must have been utilized, to the extent practicable, to ensure that such 

repairs were made as expeditiously as practicable; 

(5) The amount and duration of the excess emissions (including any bypass) were 

minimized to the maximum extent practicable during periods of such emissions; 

(6) All possible steps were taken to minimize the impact of the excess emissions 

on ambient air quality; 

(7) All emission monitoring systems were kept in operation if at all possible; 

(8) The owner or operator's actions in response to the excess emissions were 

documented by properly signed, contemporaneous operating logs, or other relevant 

evidence; 

(9) The excess emissions were not part of a recurring pattern indicative of 

inadequate design, operation, or maintenance; and 

(10) The owner or operator properly and promptly notified the appropriate 

regulatory authority. 

One refinement to these recommendations from the 1999 SSM Guidance that 

should be highlighted is the EPA's view concerning whether affirmative defenses should 

be provided in the SIP in the case of geographic areas and pollutants "where a single 

source or small group of sources has the potential to cause an exceedance of the NAAQS 

or PSD increments." The EPA believes that such affirmative defenses may be permissible 

if there is no "potential" for exceedances. Such provisions may also be permissible if the 

affirmative defense alternatively requires the source to make an affirmative after-the-fact 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 76 of 322

showing that the excess emissions that resulted from the violations did not in fact cause 

an exceedance of the NAAQS or PSD increments. The EPA has previously approved 

such provisions as meeting CAA requirements on a case-by-case basis in specific actions 

on SIP submissions, and in this action proposes to continue that approach under proper 

facts and circumstances. 

In addition to the foregoing criteria for appropriate affirmative defense provisions, 

the EPA also recommends that air agencies consider the following regulatory language 

that the EPA is currently using for affirmative defense provisions when it issues new 

National Emissions Standards for Hazardous Air Pollutants (NESHAP) for purposes of 

CAA section 112.56 Air agencies may wish to adapt this sample regulatory text for their 

own affirmative defense provisions in SIPs. 

§63.456 Affirmative defense for violation of emission standards 

during malfunction.

In response to an action to enforce the standards set forth in 

§§63.443(c) and (d), 63.444(b) and (c), 63.445(b) and (c), 63.446(c), (d), 

and (e), 63.447(b) or §63.450(d), the owner or operator may assert an 

affirmative defense to a claim for civil penalties for violations of such 

standards that are caused by malfunction, as defined at 40 CFR 63.2. 

Appropriate penalties may be assessed, however, if the owner or operator 

fails to meet the burden of proving all of the requirements in the 

affirmative defense. The affirmative defense shall not be available for 

claims for injunctive relief.

(a) To establish the affirmative defense in any action to enforce 

such a standard, the owner or operator must timely meet the reporting 

requirements in paragraph (b) of this section, and must prove by a 

preponderance of evidence that:

(1) The violation: 

(i) Was caused by a sudden, infrequent, and unavoidable failure of 

air pollution control equipment, process equipment, or a process to operate 

in a normal or usual manner; and 

 

56 See, "National Emission Standards for Hazardous Air Pollutants From the Pulp and 

Paper Industry," final rule, 77 FR 55698 (Sept. 11, 2012). Parameters for the affirmative 

defense are provided at p. 55712. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 77 of 322

(ii) Could not have been prevented through careful planning, 

proper design, or better operation and maintenance practices; and

(iii) Did not stem from any activity or event that could have been 

foreseen and avoided, or planned for; and

(iv) Was not part of a recurring pattern indicative of inadequate 

design, operation, or maintenance; and

(2) Repairs were made as expeditiously as possible when a 

violation occurred. Off-shift and overtime labor were used, to the extent 

practicable to make these repairs; and

(3) The frequency, amount and duration of the violation (including 

any bypass) were minimized to the maximum extent practicable; and

(4) If the violation resulted from a bypass of control equipment or 

a process, then the bypass was unavoidable to prevent loss of life, personal 

injury, or severe property damage; and

(5) All possible steps were taken to minimize the impact of the 

violation on ambient air quality, the environment, and human health; and

(6) All emissions monitoring and control systems were kept in 

operation if at all possible, consistent with safety and good air pollution 

control practices; and

(7) All of the actions in response to the violation were documented 

by properly signed, contemporaneous operating logs; and

(8) At all times, the affected source was operated in a manner 

consistent with good practices for minimizing emissions; and

(9) A written root cause analysis has been prepared, the purpose of 

which is to determine, correct, and eliminate the primary causes of the

malfunction and the violation resulting from the malfunction event at 

issue. The analysis shall also specify, using best monitoring methods and 

engineering judgment, the amount of any emissions that were the result of 

the malfunction.

(b) Report. The owner or operator seeking to assert an affirmative 

defense shall submit a written report to the Administrator with all 

necessary supporting documentation, [showing] that it has met the 

requirements set forth in paragraph (a) of this section. This affirmative 

defense report shall be included in the first periodic compliance [report], 

deviation report, or excess emission report otherwise required after the 

initial occurrence of the violation of the relevant standard (which may be 

the end of any applicable averaging period). If such compliance [report], 

deviation report, or excess emission report is due less than 45 days after 

the initial occurrence of the violation, the affirmative defense report may

be included in the second compliance [report], deviation report, or excess 

emission report due after the initial occurrence of the violation of the 

relevant standard. (Punctuation adjusted)

The EPA notes that this example regulatory text has some features that are not 

explicitly among the criteria recommended for SIP provisions in the SSM Policy, such as 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 78 of 322

the requirement for a "root cause analysis" in subsection (a)(9) and an affirmative 

requirement to report the malfunction to the regulator by a set date and in a particular 

report, rather than merely a general duty to report the malfunction event to the regulator. 

The EPA considers such features useful because they serve important purposes related to 

the analysis, documentation, and memorialization of the facts concerning the 

malfunction, thereby facilitating better evaluation of the events and better evaluation of 

the source's qualification for the affirmative defense. The EPA believes that these specific 

features would be very useful and thus recommends that they be included in SIP 

provisions for affirmative defenses. However, these features need not be required, so long 

as the SIP provision otherwise provides that the owner or operator of the source will: (i) 

bear the burden of proof to establish that the elements of the affirmative defense have 

been met; and (ii) properly and promptly notify the appropriate regulatory authority about 

the malfunction. 

The EPA also wants to reiterate its views concerning appropriate affirmative 

defense provisions as they relate to malfunctions that occur during planned startup and 

shutdown and as they relate to startup and shutdown that occur as the result of or part of a 

malfunction. With respect to malfunctions that happen to occur during planned startup or 

shutdown, as the EPA articulated in the 1999 SSM Guidance, the excess emissions that 

occur as a result of the malfunction may be addressed by an appropriately drawn 

affirmative defense provision consistent with the recommended criteria for such 

provisions.57 By definition, the malfunction would have been sudden, unavoidable, and 

unpredictable, and the source could not have precluded the event by better source design, 

 

57 See, 1999 SSM Guidance at attachment p. 6. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 79 of 322

operation and maintenance. The EPA interprets the CAA to allow narrowly drawn 

affirmative defense provision in SIPs in such circumstances. 

Another question is how to treat the excess emissions that occur during a startup 

or shutdown that is necessitated by the malfunction and are thus potentially components 

of the malfunction event. The EPA believes that drawing the distinction between what is 

directly caused by the malfunction itself and what is indirectly caused by the malfunction 

as a part of non-routine startup and shutdown must always be a case-specific enquiry, 

dependent upon the facts and circumstances of the specific event. It is foreseeable that a 

shutdown necessitated by a malfunction could be considered part of the malfunction 

event with the appropriate demonstration of the need to shut down differently than during 

a routine shutdown, during which a source should be expected to comply with applicable 

emission limitations. It is possible, however, that a routine shutdown may be achievable 

following a malfunction event, and a source should be expected to strive for this result. 

With respect to startups after a malfunction event, the EPA believes that such startups 

should not be considered part of the malfunction, because startups are within the control 

of the source. Malfunctions should have been resolved prior to startup, and the source 

should be designed, operated, and maintained so that it would meet emission limitations 

during startups. As a general matter, the EPA does not anticipate that there would be 

startups that would follow a malfunction that should be considered part of the 

malfunction event, but in this action the EPA is requesting that commenters address this 

issue if there could be circumstances that would justify such treatment. 

Finally, the EPA reiterates that an affirmative defense provision in a SIP cannot 

extend to direct federal regulations such as New Source Performance Standards (NSPS) 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 80 of 322

or NESHAP that the air agency may elect to adopt into its SIP, or to incorporate by 

reference into its SIP in order to receive delegation of federal authority. To the extent that 

any affirmative defense is warranted during malfunctions for these technology-based 

standards, the federal standards contained in the EPA's regulations already specify the 

appropriate affirmative defense. No additional or different affirmative defense provision 

applicable through a SIP provision would be warranted or appropriate. 

C. Affirmative Defense Provisions During Periods of Startup and Shutdown 

The EPA's evaluation of the Petition indicates that revisions to the SSM Policy

are necessary with respect to affirmative defense provisions during startup and shutdown 

periods. In the 1999 SSM Guidance, the EPA explicitly discussed the possibility of 

affirmative defenses in the context of startup and shutdown, and provided recommended 

criteria to ensure that any such affirmative defense provisions in a SIP submission would 

be appropriately narrowly drawn to comply with CAA requirements. As with affirmative 

defense provisions for malfunctions, the EPA then believed that achieving a balance 

between the requirement of the statute for emission limitations that apply continuously

and the possibility that not all sources can comply 100 percent of the time justified such 

affirmative defenses during startup and shutdown as a means of providing some 

flexibility while still supporting the overall objectives of the CAA. 

Review of the Petition and reconsideration of this question in light of recent case 

law concerning emission limitations and affirmative defenses has caused the EPA to alter 

its view on the appropriateness of affirmative defenses applicable to planned events such 

as startup and shutdown. The EPA believes that sources should be designed, maintained, 

and operated in order to comply with applicable emission limitations during normal 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 81 of 322

operations. By definition, planned events such as startup and shutdown are phases of 

normal source operation. Because these events are modes of normal operation, the EPA 

believes that sources should be expected to comply with applicable emission limitations 

during such events. 

Unlike malfunctions, startup and shutdown are not unexpected events and are not 

events that are beyond the control of the owner or operator of the source. Also unlike 

malfunctions, it is possible for the source to anticipate the amount of emissions during 

startup and shutdown, to take appropriate steps to limit those emissions as needed, and to 

remain in continuous compliance. In the event that a source in fact cannot comply with 

the otherwise applicable emission limitations during normal modes of source operation 

due to technological limitations, then it may be appropriate for the state to provide special 

emission limitations or control measures that apply to the source during startup and 

shutdown. 

The EPA acknowledges that the availability of an affirmative defense for planned 

startup and shutdown as contemplated in the 1999 SSM Guidance may have provided 

extra incentive for sources to take extra precautions to minimize emissions during startup 

and shutdown in order to be eligible for the affirmative defense in the event of a 

violation. However, sources should not need extra incentive to comply during normal 

modes of operation such as startup and shutdown, as they should be designed, operated, 

and maintained in order to comply with applicable emission limitations at all times, and 

certainly during planned and predictable events. By logical extension, the theory that an 

affirmative defense should be available during planned startup and shutdown could apply 

to all phases of normal source operation, which would not be appropriate. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 82 of 322

The EPA believes that providing affirmative defenses for violations that occur as 

a result of planned events within the control of the owner or operator of the source is 

inconsistent with the requirements of CAA sections 113 and 304, which provide for 

potential civil penalties for violations of SIP requirements. The distinction that makes 

affirmative defenses appropriate for malfunctions is that by definition those events are 

unforeseen and could not have been avoided by the owner or operator of the source, and 

the owner or operator of the source will have taken steps to prevent the violation and to 

minimize the effects of the violation after it occurs. In such circumstances, the EPA 

interprets the CAA to allow narrowly drawn affirmative defense provisions that may 

shield owners or operators of sources from civil penalties, when their conduct justifies 

this relief. 

Such is not the case with planned and predictable events, such as startup and 

shutdown, during which the owners or operators of sources should be expected to comply

with applicable emission limitations and should not be accorded relief from civil 

penalties if they fail to do so. Providing an affirmative defense for monetary penalties for 

violations that result from planned events is inconsistent with the basic premise that the 

excess emissions were beyond the control of the owner or operator of the source and thus 

is diametrically opposed to the intended purpose of such an affirmative defense to 

encourage better compliance even by sources for which 100-percent compliance is not 

possible. The EPA notes that enforcement discretion may still be warranted in such 

circumstances, but the elimination of potential civil penalties is not appropriate. For these 

reasons, the EPA is proposing to rescind its prior interpretation of the CAA that would 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 83 of 322

allow affirmative defense provisions during planned startup and shutdown.58

D. Relationship Between SIP Provisions and Title V Regulations 

The EPA's review of the Petition has highlighted an area of potential ambiguity or 

conflict between the SSM Policy applicable to SIP provisions and the EPA's regulations 

applicable to title V permit provisions. The EPA has promulgated regulations in 40 CFR 

part 70 applicable to state operating permit programs and in 40 CFR part 71 applicable to 

federal operating permit programs.59 Under each set of regulations, the EPA has provided 

that permits may contain, at the permitting authority's discretion, an "emergency

provision."60 The relationship between such an "emergency provision" in a permit 

applicable to a source and the SIP provisions applicable to the same source with respect 

to excess emissions during a malfunction event warrants explanation. 

The regulatory parameters applicable to such emergency provisions in operating 

permits are the same for both state operating permit programs regulations and the federal 

operating permit program regulations. The definition of emergency is identical in the 

regulations for each program: 

An "emergency" means any situation arising from sudden and reasonably 

unforeseeable events beyond the control of the source, including acts of 

God, which situation requires immediate corrective action to restore 

 

58 In accordance with CAA section 113(e), sources retain the ability to seek lower 

monetary penalties through the factors provided for consideration in administrative or 

judicial enforcement proceedings. In this context, for example, a violating source could 

argue that factors such as good faith efforts to comply should reduce otherwise applicable 

statutory penalties. 

59 See, 40 CFR sections 70.1 – 70.12; 40 CFR sections 71.1 – 71.27. 

60 See, 40 CFR 70.6(g); 40 CFR 71.6(g). The EPA also notes that states are not required 

to adopt the "emergency provision" contained in 40 CFR 70.6(g) into their state operating 

permit programs, and many states have chosen not to do so. See, e.g., "Clean Air Act Full 

Approval of Partial Operating Permit Program; Allegheny County; Pennsylvania; Direct 

final rule," 66 FR 55112 at 55113 (Nov. 1, 2001).
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 84 of 322

normal operation, and that causes the source to exceed a technology-based 

emission limitation under the permit, due to unavoidable increases in 

emissions attributable to the emergency. An emergency shall not include 

noncompliance to the extent caused by improperly designed equipment, 

lack of preventative maintenance, careless or improper operation or 

operator error.61

Thus, the definition of "emergency" in these title V regulations is similar to the concept 

of "malfunctions" in the EPA's SSM Policy for SIP provisions, but it uses somewhat 

different terminology concerning the nature of the event and restricts the qualifying 

exceedances to "technology-based" emission limitations.62 Some SIP provisions may also 

be "technology-based" emission limitations and thus this terminology in the operating 

permit regulations may engender some potential inconsistency with the SSM Policy. 

If there is an emergency event meeting the regulatory definition, then the EPA's 

regulations for operating permits provide that the source can assert an "affirmative 

defense" to enforcement for noncompliance with technology-based standards during the 

emergency event. In order to establish the affirmative defense, the regulations place the 

burden of proof on the source to demonstrate through specified forms of evidence that: 

(i) An emergency occurred and that the permittee can identify the cause(s) of 

the emergency; 

(ii) The permitted facility was at the time being properly operated; 

 

61 See, 40 CFR 70.6(g)(1); 40 CFR 71.6(g)(1). 

62 1999 SSM Guidance at Attachment p. 1 and footnote 6. The term "malfunction" means 

"a sudden and unavoidable breakdown of process or control equipment." The malfunction 

events that may be suitable for an affirmative defense are those that are "caused by

circumstances entirely beyond the control of the owner or operator." The EPA notes that 

by definition emergencies do not include normal source operation such as startup, 

shutdown, or maintenance. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 85 of 322

(iii) During the period of the emergency the permittee took all reasonable steps 

to minimize levels of emissions that exceeded the emission standards, or other 

requirements in the permit; and 

(iv) The permittee submitted notice of the emergency to the permitting 

authority within 2 working days of the time when emission limitations were exceeded 

due to the emergency. This notice fulfills the requirement of either paragraph 40 CFR 

70.6(a)(3)(iii)(B) or 40 CFR 71.6(a)(3)(iii)(B). This notice must contain a description of 

the emergency, any steps taken to mitigate emissions, and corrective actions taken.63

The Petitioner did not directly request that the EPA evaluate the existing 

regulatory provisions applicable to operating permits in 40 CFR part 70 and 40 CFR part 

71, and the EPA is not revising those provisions in this action. However, the Petitioner 

did identify a number of specific SIP provisions that indirectly relate to this issue because 

the state may have modeled its SIP provision, at least in part, on the EPA's operating 

permit regulations.64 In those instances, the state in question presumably intended to 

create an affirmative defense applicable during malfunctions appropriate for SIP 

provisions, but by using the terminology used in the operating permit regulations, the 

state has created provisions that are not permissible in SIPs. 

The elements for the affirmative defense in the title V permit regulations are 

similar to the criteria recommended in the SSM Policy for SIP provisions applicable to 

malfunctions. However, the elements for the affirmative defense provisions in operating 

permits do not explicitly include some of the criteria that the EPA believes are necessary

 

63 40 CFR 70.6(g)(3); 40 CFR 71.6(g)(3). 

64 See, e.g., Petition at 24. The Petitioner identified a provision in the Arkansas SIP that 

appears to be closely modeled on 40 CFR 70.6(g). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 86 of 322

in order to make such a provision appropriate in a SIP provision. For example, the EPA 

recommends that approvable SIP provisions include an affirmative duty for the source to 

establish that the malfunction was "not part of a recurring pattern indicative of inadequate 

design, operation, or maintenance."65 In addition, the regulations applicable to operating 

permits use somewhat different terminology for the elements of the defense, such as 

providing that the emergencies were "sudden and reasonably unforeseeable events 

beyond the control of the source," whereas the EPA's SSM Policy describes malfunctions 

as events that "did not stem from any activity or event that could have been foreseen and 

avoided, or planned for."66 Again, the use of somewhat different terminology about the 

elements the source must establish in order to qualify for an affirmative defense may

engender some potential inconsistency with the EPA's SSM Policy. 

Although the differing regulatory terminology with respect to the nature of the 

event or the elements necessary to establish an affirmative defense may not ultimately be 

significant in practical application in a given enforcement action, there are two additional 

ways in which incorporation of the text of the regulatory provisions in 40 CFR 70.6(g) 

and 40 CFR 71.6(g) into a SIP is potentially more directly in conflict with the SSM 

Policy. First, these provisions do not explicitly limit the affirmative defense only to civil 

penalties available under the CAA for violations of emission limitations. Each provision 

states only that an "emergency constitutes an affirmative defense to an action brought for 

noncompliance" if the source proves that it meets the conditions for the affirmative 

 

65 1999 SSM Guidance at Attachment pp. 3-4. 

66 1999 SSM Guidance at Attachment p. 3. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 87 of 322

defense.67 Given this lack of an explicit limitation, it could be argued that SIP provisions 

that copy the wording of 40 CFR 70.6(g) and 40 CFR 71.6(g) are not limited to civil 

penalties.68 Such a reading would be inconsistent with the EPA's view that affirmative 

defenses in SIP provisions are only consistent with the CAA if they apply to civil 

penalties and not to injunctive relief. The EPA believes it is essential for SIPs to ensure 

that injunctive relief is available should a court determine that such relief is necessary to 

prevent excess emissions in the future. 

Second, these operating permit regulatory provisions state that they are "in 

addition to any emergency or upset provision contained in any applicable requirement."69

The EPA's view is that federal technology-based standards already include the 

appropriate affirmative defense provisions, if any, and that creation of additional 

affirmative defenses via a SIP provision is impermissible.70 Thus, SIP provisions that add 

 

67 40 CFR 70.6(g)(2); 40 CFR 71.6(g)(2). 

68 Because title V requires that a source have a permit that "assure[s] compliance with 

applicable [CAA] requirements," CAA section 504(a), it follows that the title V 

emergency provision itself can best be read to provide only an affirmative defense against 

civil penalties and not against injunctive relief. See also, "National Emission Standards 

for Hazardous Air Pollutant Emissions for Primary Lead Processing; Final Rule," 76 FR

70834 at 70838/2 (Nov. 15, 2011) (explaining why limiting affirmative defenses to civil 

penalties conforms with the purposes of the CAA and existing case law).

69 40 CFR 70.6(g)(5); 40 CFR 71.6(g)(5). 

70 1999 SSM Guidance at Attachment p. 3, footnote 6. The EPA explained that to the 

extent a state elected to include federal technology-based standards into its SIP, such as 

NSPS or NESHAPs, the standards should not deviate from those standards as 

promulgated. Because the EPA has already taken into account technological limitations 

in setting the standards, additional exemptions or affirmative defenses would be 

inappropriate. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 88 of 322

to or alter the terms of any federal technology-based standards would be substantially

inadequate to meet CAA requirements.71

In this action, the EPA is taking action to evaluate the specific SIP provisions 

identified in the Petition and is proposing to make a finding of substantial inadequacy and 

to issue a SIP call for those SIP provisions that include features that are inappropriate for 

SIPs, regardless of whether those provisions contain terms found in other regulations. 

First, consistent with its longstanding interpretation of the CAA with respect to SIP 

requirements, the EPA believes that approvable affirmative defenses in a SIP provision 

can only apply to civil penalties, not to injunctive relief. Second, approvable affirmative 

defenses in a SIP provision should reflect the recommended criteria in the EPA's SSM 

Policy to assure that sources only assert affirmative defenses in appropriately narrow 

circumstances. Third, approvable affirmative defenses in a SIP provision cannot operate 

to create different or additional defenses from those that are provided in underlying 

federal technology-based emission limitations, such as NSPS or NESHAP. SIPs are 

comprised of emission limitations that are intended to provide for attainment and 

maintenance of the NAAQS, protection of PSD increments, protection of visibility, and 

other CAA objectives. Thus, the EPA believes that only narrowly drawn affirmative 

defense provisions, as recommended in its SSM Policy, are consistent with these 

overarching SIP requirements of the CAA. 

E. Intended Effect of the EPA's Action on the Petition 

 

71 See, "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State 

Implementation Plan Revision," 74 FR 21639 (Apr. 18, 2011) (the EPA issued a SIP call 

because, inter alia, the SIP provision applied to NSPS and NESHAP); US Magnesium, 

LLC v. EPA, 690 F.3d 1157 (10th Cir. 2012) (upholding the SIP call). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 89 of 322

As in the 2001 SSM Guidance, the EPA is endeavoring to be particularly clear 

about the intended effect of its proposed action on the Petition, of its proposed 

clarifications and revisions to the SSM Policy, and ultimately of its final action on the 

Petition. 

First, the EPA only intends its actions on the larger policy or legal issues raised by

the Petitioner to inform the public of the EPA's current views on the requirements of the 

CAA with respect to SIP provisions related to SSM events. Thus, for example, the EPA's 

proposed disapproval of the Petitioner's request that the EPA disallow all affirmative 

defense provisions for excess emissions during malfunctions is intended to convey that 

the EPA has not changed its views that such provisions can be consistent with CAA 

requirements for SIPs with respect to malfunctions. In this fashion, the EPA's action on 

the Petition provides updated guidance relevant to future SIP actions. 

Second, the EPA only intends its actions on the specific existing SIP provisions 

identified in the Petition to be applicable to those provisions. The EPA does not intend its 

action on those specific provisions to alter the current status of any other existing SIP 

provisions relating to SSM events. The EPA must take later rulemaking actions, if 

necessary, in order to evaluate any comparable deficiencies in other existing SIP 

provisions that may be inconsistent with the requirements of the CAA. Again, however, 

the EPA's actions on the Petition provide updated guidance on the types of SIP provisions 

that it believes would be consistent with CAA requirements in future rulemaking actions. 

Third, the EPA does not intend its action on the Petition to affect existing permit 

terms or conditions regarding excess emissions during SSM events that reflect previously 

approved SIP provisions. In the event that the EPA finalizes a proposed finding of 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 90 of 322

substantial inadequacy and a SIP call for a given state, the state will have time to revise 

its SIP in response to the SIP call through the necessary state and federal administrative 

process. Thereafter, any needed revisions to existing permits will be accomplished in the 

ordinary course as the state issues new permits or reviews and revises existing permits. 

The EPA does not intend the issuance of a SIP call to have automatic impacts on the 

terms of any existing permit. 

Fourth, the EPA does not intend its action on the Petition to alter the emergency

defense provisions at 40 CFR 70.6(g) and 40 CFR 71.6(g), i.e., the title V regulations 

pertaining to "emergency provisions" permissible in title V operating permits. The EPA's 

regulations applicable to title V operating permits may only be changed through 

appropriate rulemaking procedures and existing permit terms may only be changed 

through established permitting processes. 

Fifth, the EPA does not intend its interpretations of the requirements of the CAA 

in this action on the Petition to be legally dispositive with respect to any particular 

current enforcement proceedings in which a violation of SIP emission limitations is 

alleged to have occurred. The EPA handles enforcement matters by assessing each 

situation, on a case-by-case basis, to determine the appropriate response and resolution. 

For purposes of alleged violations of SIP provisions, however, the terms of the applicable 

SIP provision will continue to govern until that provision is revised following the 

appropriate process for SIP revisions, as required by the CAA. 

Finally, the EPA does intend that the final notice for this action after considering 

public comments will embody its most current SSM Policy, reflecting the EPA's 

interpretation of CAA requirements applicable to SIP provisions related to excess 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 91 of 322

emissions during SSM events. In this regard, the EPA is proposing to add to and clarify

its prior statements in the 1999 SSM Guidance and to make the specific changes to that 

guidance as discussed in this action. Thus, the final notice for this action will constitute 

the EPA's SSM Policy on a going-forward basis. 

VIII. Legal Authority, Process, and Timing for SIP Calls 

A. SIP Call Authority Under Section 110(k)(5) 

1. General Statutory Authority

The CAA provides a mechanism for the correction of flawed SIPs, under CAA 

section 110(k)(5), which provides: 

(5) Calls for plan revisions

Whenever the Administrator finds that the applicable 

implementation plan for any area is substantially inadequate to attain or 

maintain the relevant national ambient air quality standards, to mitigate 

adequately the interstate pollutant transport described in section [176A] of

this title or section [184] of this title, or to otherwise comply with any

requirement of [the Act], the Administrator shall require the State to revise 

the plan as necessary to correct such inadequacies. The Administrator 

shall notify the State of the inadequacies and may establish reasonable 

deadlines (not to exceed 18 months after the date of such notice) for the 

submission of such plan revisions. 

By its explicit terms, this provision authorizes the EPA to find that a state's 

existing SIP is "substantially inadequate" to meet CAA requirements and, based on that 

finding, to "require the State to revise the [SIP] as necessary to correct such 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 92 of 322

inadequacies." This type of action is commonly referred to as a "SIP call."

72

Significantly, CAA section 110(k)(5) explicitly authorizes the EPA to issue a SIP 

call "whenever" the EPA makes a finding that the existing SIP is substantially

inadequate, thus providing authority for the EPA to take action to correct existing 

inadequate SIP provisions even long after their initial approval, or even if the provisions 

only become inadequate due to subsequent events.73 The statutory provision is worded in 

the present tense, giving the EPA authority to rectify any deficiency in a SIP that 

currently exists, regardless of the fact that the EPA previously approved that particular 

provision in the SIP and regardless of when that approval occurred. 

It is also important to emphasize that CAA section 110(k)(5) expressly directs the 

 

72 The EPA also has other discretionary authority to address incorrect SIP provisions, 

such as the authority in CAA section 110(k)(6) for the EPA to correct errors in prior SIP 

approvals. The authority in CAA section 110(k)(5) and CAA section 110(k)(6) can 

sometimes overlap and offer alternative mechanisms to address problematic SIP 

provisions. In this instance, the EPA believes that the mechanism provided by CAA 

section 110(k)(5) is the better approach, because using the mechanism of the CAA 

section 110(k)(6) error correction would eliminate the affected emission limitations from 

the SIP potentially leaving no emission limitation in place, whereas the mechanism of the 

CAA section 110(k)(5) SIP call will keep the provisions in place during the pendency of 

the state's revision of the SIP and the EPA's action on that revision. In the case of 

provisions that include impermissible automatic exemptions or discretionary exemptions, 

the EPA believes that retention of the existing SIP provision is preferable to the absence 

of the provision in the interim. 

73 See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000) (upholding the "NOx SIP 

Call" to states requiring revisions to previously approved SIPs with respect to ozone 

transport and section 110(a)(20(D)(i)(I)); "Action to Ensure Authority To Issue Permits 

Under the Prevention of Significant Deterioration Program to Sources of Greenhouse Gas 

Emissions: Finding of Substantial Inadequacy and SIP Call; Final Rule," 75 FR 77698 

(Dec. 13, 2010) (the EPA issued a SIP call to 13 states because the endangerment finding 

for GHGs meant that these previously approved SIPs were substantially inadequate 

because they did not provide for the regulation of GHGs in the PSD permitting programs 

of these states as required by CAA section 110(a)(2)(C) and section 110(a)(2)(J)); 

"Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State 

Implementation Plan Revision," 74 FR 21639 (Apr. 18, 2011) (the EPA issued a SIP call 

to rectify SIP provisions dating back to 1980). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 93 of 322

EPA to take action if the SIP provision is substantially inadequate not just for purposes of 

attainment or maintenance of the NAAQS, but also for purposes of "any requirement" of 

the CAA. The EPA interprets this reference to "any requirement" of the CAA on its face 

to authorize reevaluation of an existing SIP provision for compliance with those statutory

and regulatory requirements that are germane to the SIP provision at issue. Thus, for 

example, a SIP provision that is intended to be an "emission limitation" for purposes of a 

nonattainment plan for purposes of the 1997 PM2.5 NAAQS must meet various applicable 

statutory and regulatory requirements, including requirements of CAA section 

110(a)(2)(A) such as enforceability, the definition of the term "emission limitation" in 

CAA section 302(k), the level of emissions control required to constitute a "reasonably 

available control measure" in CAA section 172(c)(1), and the other applicable 

requirements of the implementation regulations for the 1997 PM2.5 NAAQS. Failure to 

meet any of those applicable requirements could constitute a substantial inadequacy

suitable for a SIP call, depending upon the facts and circumstances. By contrast, that 

same SIP provision should not be expected to meet specifications of the CAA that are 

completely irrelevant for its intended purpose, such as the unrelated requirement of CAA 

section 110(a)(2)(G) that the state have general legal authority comparable to CAA 

section 303 for emergencies. 

Use of the term "any requirement" in CAA section 110(k)(5) also reflects the fact 

that SIP provisions could be substantially inadequate for widely differing reasons. One 

provision might be substantially inadequate because it fails to prohibit emissions that 

contribute to violations of the NAAQS in downwind areas many states away. Another 

provision, or even the same provision, could be substantially inadequate because it also 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 94 of 322

infringes on the legal right of members of the public who live adjacent to the source to 

enforce the SIP. Thus, the EPA has previously interpreted CAA section 110(k)(5) to 

authorize a SIP call to rectify SIP inadequacies of various kinds, both broad and narrow 

in terms of the scope of the SIP revisions required.74 On its face, CAA section 110(k)(5) 

authorizes the EPA to take action with respect to SIP provisions that are substantially

inadequate to meet any CAA requirements, including requirements relevant to the proper 

treatment of excess emissions during SSM events.

An important baseline question is whether a given deficiency renders the SIP 

provision "substantially inadequate." The EPA notes that the term "substantially

inadequate" is not defined in the CAA. Moreover, CAA section 110(k)(5) does not 

specify a particular form of analysis or methodology that the EPA must use to evaluate 

SIP provisions for substantial inadequacy. Thus, under Chevron step 2, the EPA is 

authorized to interpret this provision reasonably, consistent with the provisions of the 

CAA. In addition, the EPA is authorized to exercise its discretion in applying this 

provision to determine whether a given SIP provision is substantially inadequate. To the 

extent that the term "substantially inadequate" is ambiguous, the EPA believes that it is 

reasonable to interpret the term in light of the specific purposes for which the SIP 

provision at issue is required, and thus whether the provision meets the fundamental CAA 

 

74 See, e.g., "Finding of Significant Contribution and Rulemaking for Certain States in the 

Ozone Transport Assessment Group Region for Purposes of Reducing Regional 

Transport of Ozone," 63 FR 57356 (Oct. 27, 1998) (the EPA issued a SIP call to 23 states 

requiring them to rectify the failure to address interstate transport of pollutants as 

required by section 110(a)(2)(D); "Finding of Substantial Inadequacy of Implementation 

Plan; Call for Utah State Implementation Plan Revision," 74 FR 21639 (Apr. 18, 2011) 

(the EPA issued a SIP call to one state requiring it to rectify several very specific SIP 

provisions). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 95 of 322

requirements applicable to such a provision. 

The EPA does not interpret CAA section 110(k)(5) to require a showing that the 

effect of a SIP provision that is facially inconsistent with CAA requirements is causally

connected to a particular adverse impact. For example, the plain language of CAA 

section 110(k)(5) does not require direct causal evidence that excess emissions have

occurred during a specific malfunction at a specific source and have literally caused a 

violation of the NAAQS in order to conclude that the SIP provision is substantially

inadequate.75 A SIP provision that purports to exempt a source from compliance with 

applicable emission limitations during SSM events, contrary to the requirements of the 

CAA for continuous emission limitations, does not become legally permissible merely 

because there is not definitive evidence that any excess emissions have resulted from the 

exemption and have literally caused a specific NAAQS violation.76

Similarly, the EPA does not interpret CAA section 110(k)(5) to require direct 

causal evidence that a SIP provision that improperly undermines enforceability of the SIP 

has resulted in a specific failed enforcement attempt by any party. A SIP provision that 

has the practical effect of barring enforcement by the EPA or through a citizen suit, either 

because it would bar enforcement if an air agency elects to grant a discretionary

 

75 See, US Magnesium, LLC v. EPA, 690 F.3d 1157 (10th Cir. 2012) (upholding the 

EPA's interpretation of section 110(k)(5) to authorize a SIP call when the SIP provisions 

are inconsistent with CAA requirements). 

76 The EPA notes that the GHG SIP call did not require "proof" that the failure of a state 

to address GHGs in a given PSD permit "caused" particularized environmental impacts; it 

was sufficient that the state's SIP fails to meet the current fundamental legal requirements 

for regulation of GHGs in accordance with the CAA. See, "Action to Ensure Authority 

To Issue Permits Under the Prevention of Significant Deterioration Program to Sources 

of Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP Call; Final 

Rule," 75 FR 77698 (Dec. 13, 2010). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 96 of 322

exemption or to exercise its own enforcement discretion, is inconsistent with fundamental 

requirements of the CAA.77 Such a provision also does not become legally permissible 

merely because there is not definitive evidence that the state's action literally undermined 

a specific attempted enforcement action by other parties. Indeed, the EPA notes that these 

impediments to effective enforcement likely have a chilling effect on potential 

enforcement in general. The possibility for effective enforcement of emission limitations 

in SIPs is itself an important principle of the CAA, as embodied in CAA sections 113 and 

304. 

The EPA's interpretation of CAA section 110(k)(5) is that the fundamental 

integrity of the CAA's SIP process and structure are undermined if emission limitations 

relied upon to meet CAA requirements related to protection of public health and the 

environment can be violated without potential recourse. For example, the EPA does not 

believe that it is authorized to issue a SIP call to rectify an impermissible automatic 

exemption provision only after a violation of the NAAQS has occurred, or only if that 

NAAQS violation can be directly linked to the excess emissions that resulted from the 

impermissible automatic exemption by a particular source on a particular day. If the SIP 

contains a provision that is inconsistent with fundamental requirements of the CAA, that 

renders the SIP provision substantially inadequate. 

The EPA notes that CAA section 110(k)(5) can also be an appropriate tool to 

 

77 See, "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State 

Implementation Plan Revision," 74 FR 21639 at 21641 (Apr. 18, 2011); see also, US 

Magnesium, LLC v. EPA, 690 F.3d 1157, 1168 (10th Cir. 2012) (upholding the EPA's 

interpretation of section 110(k)(5) to authorize a SIP call when the state's SIP provision 

worded so that state decisions whether a given excess emissions event constituted a 

violation interfered with enforcement by the EPA or citizens for such event). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 97 of 322

address ambiguous SIP provisions that could be read by a court in a way that would 

violate the requirements of the CAA. For example, if an existing SIP provision 

concerning the state's exercise of enforcement discretion is sufficiently ambiguous that it 

could be construed to preclude enforcement by the EPA or through a citizen suit if the 

state elects to deem a given SSM event not a violation, then that could render the 

provision substantially inadequate by interfering with the enforcement structure of the 

CAA.78 If a court could construe the ambiguous SIP provision to bar enforcement, the 

EPA believes that it may be appropriate to take action to eliminate that uncertainty by

requiring the state to revise the ambiguous SIP provision. Under such circumstances, it 

may be appropriate for the EPA to issue a SIP call to assure that the SIP provisions are 

sufficiently clear and consistent with CAA requirements on their face.79

In this instance, the Petition raised questions concerning the adequacy of existing 

SIP provisions that pertain to the treatment of excess emissions during SSM events. The 

SIP provisions identified by the Petitioner generally fall into four major categories: (i) 

automatic exemptions; (ii) exemptions as a result of director's discretion; (iii) provisions 

that appear to bar enforcement by the EPA or through a citizen suit if the state decides 

 

78 Courts have on occasion interpreted SIP provisions to limit the EPA's enforcement 

authority as a result of ambiguous SIP provisions. See, e.g., U.S. v. Ford Motor Co., 736 

F.Supp. 1539 (W.D. Mo. 1990) and U.S. v. General Motors Corp., 702 F. Supp. 133 

(N.D. Texas 1988) (the EPA could not pursue enforcement of SIP emission limitations 

where states had approved alternative emission limitations under procedures the EPA had 

approved in the SIP); Florida Power & Light Co. v. Costle, 650 F.2d 579, 588 (5th Cir. 

1981) (the EPA to be accorded no discretion in interpreting state law). The EPA does not 

agree with the holdings of these cases, but they illustrate why it is reasonable to eliminate 

any uncertainty about enforcement authority by requiring a state to remove or revise a 

SIP provision that could be read in a way inconsistent with the requirements of the CAA. 

79 See, US Magnesium, LLC v. EPA, 690 F.3d 1157, 1170 (10th Cir. 2012) (upholding the 

EPA's use of SIP call authority in order to clarify language in the SIP that could be read 

to violate the CAA, even if a court has not yet interpreted the language in that way). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 98 of 322

not to enforce through exercise of enforcement discretion; and (iv) affirmative defense 

provisions that appear to be inconsistent with the CAA and the EPA's SSM Policy. The 

EPA believes that each of these types of SIP deficiency potentially justifies a SIP call

pursuant to CAA section 110(k)(5), if the SIP provision is as the Petitioner describes it. 

2. Substantial Inadequacy of Automatic Exemptions 

The EPA believes that SIP provisions that provide an automatic exemption from 

otherwise applicable emission limitations are substantially inadequate to meet CAA 

requirements. A typical SIP provision that includes an impermissible automatic 

exemption would provide that a source has to meet a specific emission limitation, except 

during startup, shutdown, and malfunction, and by definition any excess emissions during 

such events would not be violations and thus there could be no enforcement based on 

those excess emissions. The EPA's interpretation of CAA requirements for SIP 

provisions has been reiterated multiple times through the SSM Policy and actions on SIP 

submissions that pertain to this issue. The EPA's longstanding view is that SIP provisions 

that include automatic exemptions for excess emissions during SSM events, such that the 

excess emissions during those events are not considered violations of the applicable 

emission limitations, do not meet CAA requirements. Such exemptions undermine the 

protection of the NAAQS and PSD increments and fail to meet other fundamental 

requirements of the CAA. 

The EPA interprets CAA sections 110(a)(2)(A) and 110(a)(2)(C) to require that 

SIPs contain "emission limitations" to meet CAA requirements. Pursuant to CAA section 

302(k), those emission limitations must be "continuous." Automatic exemptions from 

otherwise applicable emission limitations thus render those limits less than continuous as 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 99 of 322

required by CAA sections 110(a)(2)(A) and 110(a)(2)(C), thereby inconsistent with a 

fundamental requirement of the CAA and thus substantially inadequate as contemplated 

in CAA section 110(k)(5). 

This inadequacy has far-reaching impacts. For example, air agencies rely on 

emission limitations in SIPs in order to provide for attainment and maintenance of the 

NAAQS. These emission limitations are basic building blocks for SIPs, often used by air 

agencies to meet various requirements including: (i) in the estimates of emissions for 

emissions inventories; (ii) in the determination of what level of emissions meets various 

statutory requirements such as "reasonably available control measures" in nonattainment 

SIPs or "best available retrofit technology" in regional haze SIPs; and (iii) in critical 

modeling exercises such as attainment demonstration modeling for nonattainment areas 

or increment use for PSD permitting purposes. All of these uses typically assume 

continuous source compliance with applicable emission limitations. 

Because the NAAQS are not directly enforceable against individual sources, air 

agencies rely on the adoption and enforcement of these generic and specific emission 

limits in SIPs in order to provide for attainment and maintenance of the NAAQS, 

protection of PSD increments, protection of visibility, and other CAA requirements.

Automatic exemption provisions for excess emissions eliminate the possibility of 

enforcement for what would otherwise be clear violations of the relied-upon emission 

limitations and thus eliminate any opportunity to obtain injunctive relief that may be 

needed to protect the NAAQS or meet other CAA requirements. Likewise, the 

elimination of any possibility for penalties for what would otherwise be clear violations 

of the emission limitations, regardless of the conduct of the source, eliminates any
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 100 of 322

opportunity for penalties to encourage appropriate design, operation, and maintenance of 

sources and efforts by source operators to prevent and to minimize excess emissions in 

order to protect the NAAQS or to meet other CAA requirements. Removal of this 

monetary incentive to comply with the SIP reduces a source's incentive to design, 

operate, and maintain its facility to meet emission limitations at all times.

3. Substantial Inadequacy of Director's Discretion Exemptions 

The EPA believes that SIP provisions that allow discretionary exemptions from 

otherwise applicable emission limitations are substantially inadequate to meet CAA 

requirements for the same reasons as automatic exemptions, but for additional reasons as 

well. A typical SIP provision that includes an impermissible "director's discretion" 

component would purport to authorize air agency personnel to modify existing SIP 

requirements under certain conditions, e.g., to grant a variance from an otherwise 

applicable emission limitation if the source could not meet the requirement in certain 

circumstances.80 If such provisions are sufficiently specific, provide for sufficient public 

process, and are sufficiently bounded, so that it is possible to anticipate at the time of the 

EPA's approval of the SIP provision how that provision will actually be applied and the 

potential adverse impacts thereof, then such a provision might meet basic CAA 

requirements. In essence, if it is possible to anticipate and evaluate in advance how the 

exercise of enforcement discretion could impact compliance with other CAA 

 

80 The EPA notes that problematic "director's discretion" provisions are not limited only

to those that purport to authorize alternative emission limitations from those required in a 

SIP. Other problematic director's discretion provisions could include those that purport to 

provide for discretionary changes to other substantive requirements of the SIP, such as 

applicability, operating requirements, recordkeeping requirements, monitoring 

requirements, test methods, and alternative compliance methods. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 101 of 322

requirements, then it may be possible to determine in advance that the pre-authorized 

exercise of director's discretion will not interfere with other CAA requirements, such as 

providing for attainment and maintenance of the NAAQS. Most director's discretion-type 

provisions cannot meet this basic test. 

Unless it is possible at the time of the approval of the SIP provision to anticipate 

and analyze the impacts of the potential exercise of the director's discretion, such 

provisions functionally could allow de facto revisions of the approved provisions of the 

SIP without complying with the process for SIP revisions required by the CAA. Sections 

110(a)(1) and (2) of the CAA impose procedural requirements on states that seek to 

amend SIP provisions. The elements of CAA section 110(a)(2) and other sections of the 

CAA, depending upon the subject of the SIP provision at issue, impose substantive 

requirements that states must meet in a SIP revision. Section 110(i) of the CAA prohibits 

modification of SIP requirements for stationary sources by either the state or the EPA, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 102 of 322

except through specified processes.81 Section 110(k) of the CAA imposes procedural and 

substantive requirements on the EPA for action upon any SIP revision. Sections 110(l) 

and 193 of the CAA both impose additional procedural and substantive requirements on 

the state and the EPA in the event of a SIP revision. Chief among these many

requirements for a SIP revision would be the necessary demonstration that the SIP 

revision in question would not interfere with any requirement concerning attainment and 

reasonable further progress or "any other applicable requirement of" the CAA to meet the 

requirements of CAA section 110(l). 

Congress presumably imposed these many explicit requirements in order to assure 

that there is adequate public process at both the air agency and federal level for any SIP 

revision, and to assure that any SIP revision meets the applicable substantive 

requirements of the CAA. Although no provision of the CAA explicitly addresses 

whether a "director's discretion" provision is acceptable by name, the EPA interprets the 

 

81 Section 110(i) of the Act states that "no order, suspension, plan revision or other action 

modifying any requirement of an applicable implementation plan may be taken with 

respect to any stationary source by the State or by the Administrator" except in 

compliance with the CAA's requirements for promulgation or revision of a plan, with 

limited exceptions. See, e.g., "Approval and Disapproval and Promulgation of Air 

Quality Implementation Plans; Colorado; Revisions to Regulation 1; Notice of proposed 

rulemaking," 75 FR 42342 at 42344 (July 21, 2010) (proposing to disapprove "director 

discretion" provisions as inconsistent with CAA requirements and noting that "[s]ection 

110(i) specifically prohibits States, except in certain limited circumstances, from taking 

any action to modify any requirement of a SIP with respect to any stationary source, 

except through a SIP revision"), finalized as proposed at 76 FR 4540 (Jan. 26, 2011); 

"Corrections to the California State Implementation Plan," 69 FR 67062 at 67063 (Nov. 

16, 2004) (noting that "a state-issued variance, though binding as a matter of State law, 

does not prevent EPA from enforcing the underlying SIP provisions unless and until EPA 

approves that variance as a SIP revision"); Industrial Environmental Association v. 

Browner, No. 97-71117 at n. 2 (9th Cir. May 26, 2000) (noting that the EPA has 

consistently treated individual variances granted under state variance provisions as 

"modifications of the SIP requiring independent EPA approval"). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 103 of 322

statute to prohibit such provisions unless they would be consistent with the statutory and 

regulatory requirements that apply to SIP revisions.82 A SIP provision that purports to 

give broad and unbounded director's discretion to alter the existing legal requirements of 

the SIP with respect to meeting emission limitations would be tantamount to allowing a 

revision of the SIP without meeting the applicable procedural and substantive 

requirements for such a SIP revision. 

For this reason, the EPA has long discouraged the creation of new SIP provisions 

containing an impermissible director's discretion feature and has also taken actions to 

remove existing SIP provisions that it had previously approved in error.83 In recent years, 

the EPA has also recommended that if an air agency elects to have SIP provisions that 

contain a director's discretion feature consistent with CAA requirements, then the 

provisions must be structured so that any resulting variances or other deviations from the 

SIP requirements have no federal law validity, unless and until the EPA specifically 

approves that exercise of the director's discretion as a SIP revision. Barring such a later 

 

82 See, e.g., EPA's implementing regulations at 40 CFR 51.104(d) ("In order for a 

variance to be considered for approval as a revision to the [SIP], the State must submit it 

in accordance with the requirements of this section") and 51.105 ("Revisions of a plan, or 

any portion thereof, will not be considered part of an applicable plan until such revisions 

have been approved by the Administrator in accordance with this part."). 

83 See, e.g., "Approval and Disapproval and Promulgation of Air Quality Implementation 

Plans; Colorado; Revisions to Regulation 1," 76 FR 4540 (Jan. 26, 2011) (partial 

disapproval of SIP submission based on inclusion of impermissible director's discretion 

provisions); "Correction of Implementation Plans; American Samoa, Arizona, California, 

Hawaii, and Nevada State Implementation Plans; Notice of proposed rulemaking," 61 FR 

38664 (July 25, 1996) (proposed SIP correction to remove, pursuant to CAA section 

110(k)(6), several variance provisions from American Samoa, Arizona, California, 

Hawaii, and Nevada SIPs), finalized at 62 FR 34641 (June 27, 1997); "Approval and 

Promulgation of Implementation Plans; Corrections to the Arizona and Nevada State 

Implementation Plans," 74 FR 57051 (Nov. 3, 2009) (direct final rulemaking to remove, 

pursuant to CAA section 110(k)(6), variance provisions from Arizona and Nevada SIPs). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 104 of 322

ratification by the EPA through a SIP revision, the exercise of director's discretion is only

valid for state (or tribal) law purposes and would have no bearing in the event of an 

action to enforce the provision of the SIP as it was originally approved by the EPA. 

The EPA's evaluation of the specific SIP provisions of this type identified in the 

Petition indicates that none of them provide sufficient process or sufficient bounds on the 

exercise of director's discretion to be permissible. Most on their face would allow 

potentially limitless exemptions with potentially dramatic adverse impacts inconsistent 

with the objectives of the CAA. More importantly, however, each of the identified SIP 

provisions goes far beyond the limits of what might theoretically be a permissible 

director's discretion provision by authorizing state personnel to create case-by-case 

exemptions from the applicable emission limitations from the requirements of the SIP for 

excess emissions during SSM events. Given that the EPA interprets the CAA not to allow 

exemptions from SIP emission limitations for excess emissions during SSM events in the 

first instance, it follows that providing such exemptions through the mechanism of 

director's discretion provision is also not permissible and compounds the problem. 

As with automatic exemptions for excess emissions during SSM events, a 

provision that allows discretionary exemptions would not meet the statutory requirements 

of CAA sections 110(a)(2)(A) and 110(a)(2)(C) that require SIPs to contain "emission 

limitations" to meet CAA requirements. Pursuant to CAA section 302(k), those emission 

limitations must be "continuous." Discretionary exemptions from otherwise applicable 

emission limitations render those limits less than continuous, as is required by CAA 

sections 110(a)(2)(A) and 110(a)(2)(C), and thereby inconsistent with a fundamental 

requirement of the CAA and thus substantially inadequate as contemplated in section 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 105 of 322

CAA 110(k)(5). Such exemptions undermine the objectives of the CAA such as 

protection of the NAAQS and PSD increments, and they fail to meet other fundamental 

requirements of the CAA. 

In addition, discretionary exemptions undermine effective enforcement of the SIP 

by the EPA or through a citizen suit, because often there may have been little or no public 

process concerning the exercise of director's discretion to grant the exemptions, or easily

accessible documentation of those exemptions, and thus even ascertaining the possible 

existence of such ad hoc exemptions will further burden parties who seek to evaluate 

whether a given source is in compliance or to pursue enforcement if it appears that the 

source is not. Where there is little or no public process concerning such ad hoc

exemptions, or inadequate access to relevant documentation of those exemptions, 

enforcement by the EPA or through a citizen suit may be severely compromised. As 

explained in the 1999 SSM Guidance, the EPA does not interpret the CAA to allow SIP 

provisions that would allow the exercise of director's discretion concerning violations to 

bar enforcement by the EPA or through a citizen suit. The exercise of director's discretion 

to exempt conduct that would otherwise constitute a violation of the SIP would interfere 

with effective enforcement of the SIP. Such provisions are inconsistent with and 

undermine the enforcement structure of the CAA provided in CAA sections 113 and 304, 

which provide independent authority to the EPA and citizens to enforce SIP provisions, 

including emission limitations. Thus, SIP provisions that allow discretionary exemptions 

from applicable SIP emission limitations through the exercise of director's discretion are 

substantially inadequate to comply with CAA requirements as contemplated in CAA 

section 110(k)(5).
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 106 of 322

4. Substantial Inadequacy of Improper Enforcement Discretion Provisions 

The EPA believes that SIP provisions that pertain to enforcement discretion but 

could be construed to bar enforcement by the EPA or through a citizen suit if the air 

agency declines to enforce are substantially inadequate to meet CAA requirements. A 

typical SIP provision that includes an impermissible enforcement discretion provision 

specifies certain parameters for when air agency personnel should pursue enforcement 

action, but is worded in such a way that the air director's decision defines what 

constitutes a "violation" of the emission limitation for purposes of the SIP, i.e., by

defining what constitutes a violation, the air agency's own enforcement discretion 

decisions are imposed on the EPA or citizens.84

The EPA's longstanding view is that SIP provisions cannot enable an air agency's 

decision concerning whether or not to pursue enforcement to bar the ability of the EPA or 

the public to enforce applicable requirements.85 Such enforcement discretion provisions 

in a SIP would be inconsistent with the enforcement structure provided in the CAA. 

Specifically, the statute provides explicit independent enforcement authority to the EPA 

under CAA section 113 and to citizens under CAA section 304. Thus, the CAA 

contemplates that the EPA and citizens have authority to pursue enforcement for a 

violation even if the air agency elects not to do so. The EPA, citizens, and any court in 

which they seek to pursue an enforcement claim for violation of SIP requirements must 

 

84 See, e.g., "Finding of Substantial Inadequacy of Implementation Plan; Call for Utah 

State Implementation Plan Revision," 75 FR 70888 at 70892 (Nov. 19, 2010). The SIP 

provision at issue provided that information concerning a malfunction "shall be used by 

the executive secretary in determining whether a violation has occurred and/or the need 

of further enforcement action." This SIP language appeared to give the state official 

exclusive authority to determine whether excess emissions constitute a violation. 

85 See, 1999 SSM Guidance at 3. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 107 of 322

retain the authority to evaluate independently whether a source's violation of an emission 

limitation warrants enforcement action. Potential for enforcement by the EPA or through 

a citizen suit provides an important safeguard in the event that the air agency lacks 

resources or ability to enforce violations and provides additional deterrence. Accordingly, 

a SIP provision that operated to eliminate the authority of the EPA or the public to pursue 

enforcement actions because the air agency elects not to, would undermine the 

enforcement structure of the CAA and would thus be substantially inadequate to meet 

fundamental requirements in CAA sections 113 and 304. 

5. Substantial Inadequacy of Deficient Affirmative Defense Provisions 

The EPA believes that SIP provisions that provide inappropriate affirmative 

defenses for excess emissions during SSM events are substantially inadequate to meet 

CAA requirements. A typical SIP provision that includes an impermissible affirmative 

defense provision could contain several deficiencies simultaneously, even though it may

superficially resemble such a defense and actually contain the term "affirmative defense." 

There are a number of ways in which such provisions can be deficient, including: (i) 

extending the affirmative defense to injunctive relief; (ii) not including sufficient criteria 

to make the affirmative defense appropriately narrow; (iii) imposing the affirmative 

defense provision on federal technology-based emission limitations in the SIP; and (iv) 

providing an affirmative defense to startup, shutdown, or other planned and routine 

modes of source operation. 

First, the EPA interprets the CAA to allow only those affirmative defense 

provisions that provide a potential for relief from civil penalties and not those that 

provide relief from injunctive relief as well. As explained in more detail in section IV of 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 108 of 322

this notice, the EPA interprets the provisions of CAA section 110(a) to allow affirmative 

defenses only in certain narrow circumstances, as a means of balancing the obligations of 

sources to meet emission limitations continuously as required by CAA section 302(k) 

with the practical reality that despite the most diligent of efforts, a source may violate 

emission standards under certain limited circumstances beyond the source's control. For 

sources that meet the conditions for an affirmative defense, the EPA believes that it is 

appropriate to provide relief only from monetary penalties. This limitation assures that 

the EPA and air agencies remain able to meet fundamental CAA requirements such as 

attainment and maintenance of the NAAQS, protection of PSD increments, protection of 

visibility, and other CAA requirements. 

By contrast, because SIP provisions are intended to meet fundamental CAA 

objectives including attainment and maintenance of the NAAQS, it would be 

inappropriate to eliminate the availability of injunctive relief for violations, in order to 

ensure that the necessary emissions reductions could be obtained through changes at the 

source or in source operation should that be necessary. In this way, the EPA believes that 

affirmative defense provisions applicable only to monetary penalties can meet the 

requirements of CAA sections 110(a) and 302(k) and the enforcement structure provided 

in CAA sections 113 and 304. Failure to preserve the availability of injunctive relief for 

violations would thus be substantially inadequate to meet CAA requirements. 

Second, the EPA interprets the CAA to allow only those affirmative defense 

provisions that are narrowly drawn to provide relief under appropriate circumstances 

where the event was entirely beyond the control of the owner or operator of the source 

and for which the source must have taken all practicable steps to prevent and to minimize 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 109 of 322

the excess emissions that result from the event. Through the criteria in the 1999 SSM 

Guidance, the EPA has recommended the conditions that it considers appropriate for an 

approvable SIP provision in order to ensure that the affirmative defense is available to 

sources that warrant relief from monetary penalties otherwise required by the CAA. 

Affirmative defense provisions that are consistent with these criteria would be 

appropriately narrowly drawn. Affirmative defense provisions that do not address these 

criteria adequately, however, would potentially shield a source from CAA statutory

penalties in circumstances that are not warranted. 

For example, an affirmative defense provision that did not impose a burden upon 

the source to establish that the violation was not the result of an event that could have 

been prevented through proper maintenance would not serve to encourage better 

maintenance. Similarly, an affirmative defense provision that failed to impose a burden 

upon the source to establish that it took all possible steps to minimize the effect of the 

violation on ambient air quality, the environment, and human health, would not serve to 

encourage diligence in rectifying the malfunction as quickly and effectively as possible. 

By addressing the recommended criteria adequately, a state can develop a narrow 

provision that appropriately balances the requirement for continuous compliance against 

the reality that there may be limited circumstances beyond the source's control that justify

relief from monetary penalties. The EPA believes that failure to have an affirmative 

defense provision that is sufficiently narrowly drawn would fail to meet the requirements 

of CAA sections 110(a) and 302(k) and the enforcement structure provided in CAA 

sections 113 and 304. Failure to have a sufficiently narrow affirmative defense would 

thus be substantially inadequate to meet CAA requirements. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 110 of 322

Third, the EPA interprets the CAA to preclude SIP provisions that would create 

affirmative defense provisions applicable to federal regulations that an air agency may

have copied into its SIP or incorporated by reference in order to take credit for resulting 

emissions reductions for SIP planning purposes or to receive delegation of federal 

authority, such as NSPS or NESHAP. To the extent that any affirmative defense 

appropriate for these technology-based standards is warranted, the federal standards 

contained in the EPA's regulations already specify the appropriate affirmative defense. 

Creating affirmative defenses that do not exist in such federal technology-based 

standards, or providing different affirmative defenses in addition to those that do exist, 

would be inappropriate. Similarly, reliance on inappropriate affirmative defenses in the 

context of PSD permitting or nonattainment NSR permitting programs could likewise be 

problematic. 

Fourth, the EPA interprets the CAA to allow only affirmative defense provisions 

that are available for events that are entirely beyond the control of the owner or operator 

of the source. Thus, an affirmative defense may be appropriate for events like 

malfunctions, which are sudden and unavoidable events that cannot be foreseen or 

planned for. The underlying premise for an affirmative defense provision is that the 

source is properly designed, operated, and maintained, and could not have taken action to 

prevent the exceedance. Because the qualifying source could not have foreseen or 

prevented the event, the affirmative defense is available to provide relief from monetary

penalties that could result from an event beyond the control of the source. 

The legal and factual basis that supports the concept of an affirmative defense for 

malfunctions does not support providing and an affirmative defense for normal modes of 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 111 of 322

operation like startup and shutdown. Such events are planned and predictable. The source 

should be designed, operated, and maintained to comply with applicable emission 

limitations. Because startup and shutdown periods are part of a source's normal 

operations, the same approach to compliance with, and enforcement of, applicable 

emission limitations during those periods should apply as otherwise applies during a 

source's normal operations. If justified, the state can develop special emission limitations 

or control measures that apply during startup and shutdown if the source cannot meet the 

otherwise applicable emission limitations in the SIP. 

Even if a source is a suitable candidate for distinct SIP emission limitations 

during startup and shutdown, however, that does not justify the creation of an affirmative 

defense in the case of excess emissions during such periods. Because these events are 

planned, the EPA believes that sources should be able to comply with applicable 

emission limitations during these periods of time. To provide an affirmative defense for 

violations that occur during planned and predictable events for which the source should 

have been expected to comply is tantamount to providing relief from civil penalties for a 

planned violation. The EPA believes that affirmative defense provisions that include

periods of normal source operation that are within the control of the owner or operator of 

the source, such as planned startup and shutdown, would be inconsistent with the 

requirements of CAA sections 110(a) and 302(k) and the enforcement structure provided 

in CAA sections 113 and 304. An affirmative defense provision that expands the 

availability of the defense to planned events such as startup and shutdown would thus be 

substantially inadequate to meet CAA requirements. 

B. SIP Call Process Under Section 110(k)(5) 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 112 of 322

Section 110(k)(5) of the CAA provides the EPA with authority to determine 

whether a SIP is substantially inadequate to attain or maintain the NAAQS or otherwise 

comply with any requirement of the CAA. Where the EPA makes such a determination, 

the EPA then has a duty to issue a SIP call.

In addition to providing general authority for a SIP call, CAA section 110(k)(5) 

sets forth the process and timing for such an action. First, the statute requires the EPA to 

notify the state of the final finding of substantial inadequacy. The EPA typically provides

notice to states by a letter from the Assistant Administrator for the Office of Air and 

Radiation to the appropriate state officials in addition to publication of the final action in 

the Federal Register.

Second, the statute requires the EPA to establish "reasonable deadlines (not to 

exceed 18 months after the date of such notice)" for the state to submit a corrective SIP 

submission to eliminate the inadequacy in response to the SIP call. The EPA proposes 

and takes comment on the schedule for the submission of corrective SIP revisions in 

order to ascertain the appropriate timeframe, depending on the nature of the SIP 

inadequacy.

Third, the statute requires that any finding of substantial inadequacy and notice to 

the state be made public. By undertaking a notice-and-comment rulemaking, the EPA 

assures that the air agency, affected sources, and members of the public all are adequately 

informed and afforded the opportunity to participate in the process. Through this proposal 

notice and the later final notice, the EPA intends to provide a full evaluation of the issues 

raised by the Petition and to use this process as a means of giving clear guidance 

concerning SIP provisions relevant to SSM events that are consistent with CAA 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 113 of 322

requirements. 

If the state fails to submit the corrective SIP revision by the deadline that the EPA 

finalizes as part of the SIP call, CAA section 110(c) authorizes the EPA to "find[] that 

[the] State has failed to make a required submission."

86 Once the EPA makes such a 

finding of failure to submit, CAA section 110(c)(1) requires the EPA to "promulgate a 

Federal implementation plan at any time within 2 years after the [finding] . . . unless the 

State corrects the deficiency, and [the EPA] approves the plan or plan revision, before 

[the EPA] promulgates such [FIP]." Thus, if the EPA finalizes a SIP call and then finds 

that the air agency failed to submit a complete SIP revision that responds to the SIP call,

or if the EPA disapproves such SIP revision, then the EPA will have an obligation under 

CAA section 110(c)(1) to promulgate a FIP no later than 2 years from the date of the 

finding or the disapproval, if the deficiency has not been corrected before that time.

87

The finding of failure to submit a revision in response to a SIP call, or the EPA's 

disapproval of that corrective SIP revision, can also trigger sanctions under CAA section 

179. If a state fails to submit a complete SIP revision that responds to a final SIP call, 

CAA section 179(a) provides for the EPA to issue a finding of state failure. Such a 

finding starts mandatory 18-month and 24-month sanctions clocks. The two sanctions 

that apply under CAA section 179(b) are the 2-to-1 emission offset requirement for all 

new and modified major sources subject to the nonattainment new source review program 

and restrictions on highway funding. However, section 179 leaves it to the EPA to decide 

the order in which these sanctions apply. The EPA issued an order of sanctions rule in 

 

86 CAA section 110(c)(1)(A). 

87 The 2-year deadline does not necessarily apply to FIPs following disapproval of a tribal 

implementation plan. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 114 of 322

1994 but did not specify the order of sanctions where a state fails to submit or submits a 

deficient SIP revision in response to a SIP call.

88 As the EPA has done in other SIP calls, 

the EPA proposes that the 2-to-1 emission offset requirement will apply for all new 

sources subject to the nonattainment new source review program 18 months following 

such finding or disapproval unless the state corrects the deficiency before that date. The 

EPA proposes that the highway funding restrictions sanction will also apply 24 months 

following such finding or disapproval unless the state corrects the deficiency before that 

date. The EPA is proposing that the provisions in 40 CFR 52.31 regarding staying the 

sanctions clock and deferring the imposition of sanctions would also apply. 

Mandatory sanctions under CAA section 179 generally apply only in 

nonattainment areas. By its definition, the emission offset sanction applies only in areas 

required to have a part D NSR program, typically areas designated nonattainment. 

Section 179(b)(1) expressly limits the highway funding restriction to nonattainment 

areas. Additionally, the EPA interprets the section 179 sanctions to apply only in the area 

or areas of the state that are subject to or required to have in place the deficient SIP and 

for the pollutant or pollutants the specific SIP element addresses. For example, if the 

deficient provision applies statewide and applies for all NAAQS pollutants, then the 

mandatory sanctions would apply in all areas designated nonattainment for all NAAQS 

within the state. In this case, the EPA will evaluate the geographic scope of potential 

sanctions at the time it makes a final determination whether the state's SIP is substantially

inadequate and issues a SIP call, as this may vary depending upon the provisions at issue.

 

88 See, "Selection of Sequence of Mandatory Sanctions for Findings Made Pursuant to 

Section 179 of the Clean Air Act," 59 FR 39832 (Aug. 4, 1994), codified at 40 CFR 

52.31. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 115 of 322

C. SIP Call Timing Under Section 110(k)(5) 

If the EPA finalizes a proposed finding of substantial inadequacy and a proposed 

SIP call for any state, CAA section 110(k)(5) requires the EPA to establish a SIP 

submission deadline by which the state must make a SIP submission to rectify the 

identified deficiency. Pursuant to CAA section 110(k)(5), the EPA has authority to set a 

SIP submission deadline up to 18 months from the date of the final finding of 

inadequacy. 

The EPA is proposing that if it promulgates a final finding of inadequacy and a 

SIP call for a state, the EPA will establish a date 18 months from the date of 

promulgation of the final finding for the state to respond to the SIP call. If, for example, 

the EPA's final findings are signed and disseminated in June 2013, then the SIP 

submission deadline for each of the states subject to the final SIP call would fall in 

December 2014. Thereafter, the EPA will review the adequacy of that new SIP 

submission in accordance with the CAA requirements of sections 110(a), 110(k), 110(l), 

and 193, including the EPA's interpretation of the CAA reflected in the SSM Policy as 

clarified and updated through this rulemaking. 

The EPA is proposing the maximum time permissible under the CAA for a state 

to respond to a SIP call. The EPA believes that it is appropriate to provide states with the 

maximum time allowable under CAA section 110(k)(5) in order to allow states sufficient 

time to make SIP revisions following their own SIP development process. The EPA 

considers this a reasonable time period for the affected states to revise their state 

regulations, provide for public input, process the SIP revision through the state's own 

procedures, and submit the SIP revision to the EPA. Such a schedule will allow for the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 116 of 322

necessary SIP development process to correct the deficiencies, yet still achieve the 

necessary SIP improvements as expeditiously as practicable. The EPA acknowledges that 

the longstanding existence of many of the provisions at issue, such as automatic 

exemptions for SSM events, may have resulted in undue reliance on them as a 

compliance mechanism by some sources. As a result, development of appropriate SIP 

revisions may entail reexamination of the applicable emission limitations themselves, and 

this process may require the maximum time allowed by the CAA. Nevertheless, the EPA 

encourages the affected states to make the necessary revisions in as timely a fashion as 

possible and encourages the states to work with the respective EPA Regional Office as 

they develop the SIP revisions. 

The EPA notes that the SIP calls that it is proposing for affected states in this 

action would be narrow and apply only to the specific SIP provisions determined to be 

inconsistent with the requirements of the CAA. To the extent that a state is concerned that 

elimination of a particular aspect of an existing emission limitation, such as an 

impermissible exemption, will render that emission limitation more stringent than the 

state originally intended and more stringent than needed to meet the CAA requirements it 

was intended to address, the EPA anticipates that the state will revise the emission 

limitation accordingly, but without the impermissible exemption or other feature that 

necessitated the SIP call.

Finally, the EPA notes that its authority under CAA section 110(k)(5) does not 

extend to requiring a state to adopt a particular control measure in its SIP in response to 

the SIP call. Under principles of cooperative federalism, the CAA vests air agencies with 

substantial discretion to develop SIP provisions, so long as the provisions meet the legal 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 117 of 322

requirements and objectives of the CAA.89 Thus, the issuance of a SIP call should not be 

misconstrued as a directive to the state in question to adopt a particular control measure. 

The EPA is merely proposing to require that affected states make a SIP revision to 

remove or revise existing SIP provisions that fail to comply with fundamental 

requirements of the CAA. The states retain discretion to remove or revise those 

provisions as they determine best, so long as they bring their SIPs into compliance with 

the requirements of the CAA.90

IX. What is the EPA proposing for each of the specific SIP provisions identified 

in the Petition? 

A. Overview of the EPA's Evaluation of Specific SIP Provisions 

In reviewing the Petitioner's concerns with respect to the specific SIP provisions 

identified in the Petition, the EPA notes that most of the provisions relate to a small 

number of common issues. As the EPA acknowledges in section II.A of this notice, many

of these provisions are as old as the original SIPs that the EPA approved in the early 

1970s, when the states and the EPA had limited experience in evaluating the provisions' 

adequacy, enforceability, and consistency with CAA requirements. 

In some instances the EPA does not agree with the Petitioner's reading of the 

provision in question, or with the Petitioner's conclusion that the provision is inconsistent 

 

89 See, Virginia, et al. v. EPA, 108 F.3d 1397 (D.C. Cir. 1997) (SIP call remanded and 

vacated because, inter alia, the EPA had issued a SIP call that required states to adopt a 

particular control measure for mobile sources). 

90 Notwithstanding the latitude states have in developing SIP provisions, the EPA is 

required to assure that states meet the basic legal criteria for SIPs. See, Michigan, et al. v. 

EPA, 213 F.3d 663, 686 (D.C. Cir. 2000) (upholding NOx SIP call because, inter alia,

the EPA was requiring states to meet basic legal requirement that SIPs comply with 

section 110(a)(2)(D), not dictating the adoption of a particular control measure). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 118 of 322

with the requirements of the CAA. However, given the common issues that arise in the 

Petition for multiple states, there are some overarching conceptual points that merit 

discussion in general terms before delving into the facts and circumstances of the specific 

SIP provisions in each state. The EPA solicits comment on all aspects of this proposal. 

1. Automatic Exemption Provisions 

A significant number of provisions identified by the Petitioner pertain to existing 

SIP provisions that create automatic exemptions for excess emissions during periods of 

startup, shutdown, or malfunction. Occasionally, these provisions also pertain to 

exemptions for excess emission that occur during maintenance, load change, or other 

types of normal source operation. These provisions typically provide that a source subject 

to a specific SIP emission limitation is exempted from compliance during startup, 

shutdown, and malfunction, so that the excess emissions are defined as not violations. 

Often, these provisions are artifacts of the early phases of the SIP program, approved 

before state and EPA regulators recognized the implications of such exemptions. 

Whatever the genesis of these existing SIP provisions, however, these automatic 

exemptions from emission limitations are not consistent with the CAA, as the EPA has 

stated in its SSM Policy since at least 1982. 

After evaluating the Petition, the EPA proposes to determine that a number of 

states have existing SIP provisions that create impermissible automatic exemptions for 

excess emissions during malfunctions or during startup, shutdown, or other types of 

normal source operation. In those instances where the EPA agrees that a SIP provision 

identified by the Petitioner contains such an exemption contrary to the requirements of 

the CAA, the EPA is proposing to grant the Petition and accordingly to issue a SIP call to 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 119 of 322

the appropriate state. 

2. Director's Discretion Exemption Provisions 

Another category of problematic SIP provision identified by the Petitioner is 

exemptions for excess emissions that, while not automatic, are exemptions for such 

emissions granted at the discretion of state regulatory personnel. In some cases, the SIP 

provision in question may provide some minimal degree of process and some parameters 

for the granting of such discretionary exemptions, but the typical provision at issue

allows state personnel to decide unilaterally and without meaningful limitations that what 

would otherwise be a violation of the applicable emission limitation is instead exempt. 

Because the state personnel have the authority to decide that the excess emissions at issue 

are not a violation of the applicable emission limitation, such a decision would transform 

the violation into a non-violation, thereby barring enforcement by the EPA or others. 

The EPA refers to this type of provision as a "director's discretion" provision, and 

the EPA interprets the CAA generally to forbid such provisions in SIPs because they

have the potential to undermine fundamental statutory objectives such as the attainment 

and maintenance of the NAAQS and to undermine effective enforcement of the SIP. As 

discussed in sections VIII.A and IX of this notice, unbounded director's discretion 

provisions purport to allow unilateral revisions of approved SIP provisions without 

meeting the applicable statutory substantive and procedural requirements for SIP 

revisions. The specific SIP provisions at issue in the Petition (see section IX of this 

notice) are especially inappropriate because they purport to allow discretionary creation 

of case-by-case exemptions from the applicable emission limitations, when the CAA does 

not permit any such exemptions in the first instance. The practical impact of such 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 120 of 322

provisions is that in effect they transform an enforcement discretion decision by the state 

(e.g., that the excess emission from a given SSM event should be excused for some 

reason) into an exemption from compliance that also prevents enforcement by the EPA or 

through a citizen suit. The EPA's longstanding SSM Policy has interpreted the CAA to 

preclude SIP provisions in which a state's exercise of its own enforcement discretion bars 

enforcement by the EPA or through a citizen suit. Where the EPA agrees that a SIP 

provision identified by the Petitioner contains such a discretionary exemption contrary to 

the requirements of the CAA, the EPA is proposing to grant the Petition and to call for 

the state to rectify the problem.

3. State-only Enforcement Discretion Provisions 

The Petitioner identified existing SIP provisions in many states that ostensibly

pertain to parameters for the exercise of enforcement discretion by state personnel for 

violations due to excess emissions during SSM events. The EPA's SSM Policy has 

consistently encouraged states to utilize traditional enforcement discretion within 

appropriate bounds for such violations and, in the 1982 SSM Guidance, explicitly

recommended criteria that states might consider in the event that they elected to 

formalize their enforcement discretion with provisions in the SIP. The intent has been 

that such enforcement discretion provisions in a SIP would be "state-only," meaning that 

the provisions apply only to the state's own enforcement personnel and not to the EPA or 

to others. 

The EPA has determined that a number of states have SIP provisions that, when 

evaluated carefully, could reasonably be construed to allow the state to make 

enforcement discretion decisions that would purport to foreclose enforcement by the EPA 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 121 of 322

under CAA section 113 or by citizens under section 304. In those instances where the 

EPA agrees that a specific provision could have the effect of impeding adequate 

enforcement of the requirements of the SIP by parties other than the state, the EPA is 

proposing to grant the Petition and to take action to rectify the problem. By contrast, 

where the EPA's evaluation indicates that the existing provision on its face or as 

reasonably construed could not be read to preclude enforcement by parties other than the 

state, the EPA is proposing to deny the Petition, and the EPA is taking comment on this 

issue in particular to assure that the state and the EPA have a common understanding that 

the provision does not have any impact on potential enforcement by the EPA or through a 

citizen suit. This process should serve to ensure that there is no misunderstanding in the 

future that the correct reading of the SIP provision would not bar enforcement by the 

EPA or through a citizen suit when the state elected to exercise its own enforcement 

discretion. 

The EPA notes that another method by which to eliminate any potential ambiguity

about the meaning of these enforcement discretion provisions would be for the state to 

revise its SIP to remove the provisions. Because these provisions are only applicable to 

the state, the EPA's current view is that they need not be included within the SIP. Thus, 

the EPA supports states that elect to revise their SIPs to remove these provisions to avoid 

any unnecessary confusion. 

4. Adequacy of Affirmative Defense Provisions 

In addition to its overarching request that the EPA revise its interpretation of the 

CAA and forbid any form of affirmative defense, the Petitioner also identified specific 

existing affirmative defense provisions in SIPs that the Petitioner contended are not 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 122 of 322

consistent with the EPA's SSM Policy. In general, these provisions are structured as 

affirmative defense provisions, but the Petitioner expressed concern that they fail to 

address some or all of the criteria for such provisions that the EPA recommended in the 

1999 SSM Guidance. 

In reviewing the claims of the Petitioner with respect to this type of alleged SIP 

inadequacy, the EPA is reevaluating each of the challenged affirmative defense 

provisions on the merits to determine whether it provides the types of assurances that the 

EPA has recommended as necessary to meet CAA requirements. As the SSM Policy is 

guidance, it does not require any particular approach, but it does reflect the EPA's 

interpretation of the CAA with respect to what could constitute an acceptable affirmative 

defense provision. For each of these provisions identified by the Petitioner, the EPA 

proposes to grant or to deny the Petition, based on the EPA's evaluation as to whether the 

provision at issue provides adequate criteria to provide only a narrow affirmative defense 

for sources under certain circumstances consistent with the overarching CAA objectives, 

such as attaining and maintaining the NAAQS.91 In addition, as discussed in section 

VII.C of this notice, the EPA is also proposing to grant the Petition with respect to any 

identified provision that creates an affirmative defense applicable during planned startup 

and shutdown events, because such provisions are not consistent with the requirements of 

the CAA. 

 

91 By definition, an affirmative defense provision in a SIP provides a source with a 

defense to assert in an enforcement proceeding. The source has the ability to establish 

whether or not it has met the legal and factual parameters for such affirmative defense,

and that question will be decided by the court or other trier of fact in the proceeding. The 

relevant circumstances in such a proceeding would thus include issues relevant to the 

parameters for affirmative defense provisions, as enumerated in section VII.B of this 

notice.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 123 of 322

5. Affirmative Defense Provisions Applicable to a "Source or Small Group of 

Sources"

The Petitioner specifically objected to existing provisions in SIPs for a few states 

that allow an affirmative defense for certain categories of sources to be based on an afterthe-fact showing that the excess emissions during a particular SSM event did not cause a 

violation of the NAAQS or PSD increments. The Petitioner argued that these affirmative 

defense provisions are inconsistent with the CAA and with the EPA's own 

recommendations for affirmative defenses in the SSM Policy, because the provisions 

provide the possibility for an affirmative defense to be used by sources that would fall 

into the category of "a source or small group of sources that has the potential to cause an 

exceedance of the NAAQS or PSD increments."92

The EPA acknowledges that its 1999 SSM Guidance recommended against 

affirmative defense provisions in SIPs for sources that have the potential, either 

individually or in small groups, to have excess emissions during SSM events that could 

cause a violation of the NAAQS or PSD increments. The EPA recommended that states 

utilize an enforcement discretion approach, rather than create an affirmative defense 

provision, for such sources. However, the EPA's SSM Policy is guidance, and the facts 

and circumstances of a particular situation may justify adopting a different approach. The 

EPA has evaluated each of the affirmative defense provisions identified by the Petitioner 

on the facts and circumstances of the particular provision. For each of these provisions, 

the EPA proposes to grant or to deny the Petition, based on an evaluation of whether the 

 

92 See, 1999 SSM Guidance at 4, and Attachment at 2, 3, and 5. Footnote 2 to that 

document articulates the reasoning behind the EPA's recommendation against such 

provisions, at least for some sources and for some NAAQS. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 124 of 322

specific provision at issue in an individual SIP contains adequate criteria to achieve the 

objective of providing only a narrow affirmative defense for sources under certain 

circumstances consistent with the overarching CAA objectives, such as attaining and 

maintaining the NAAQS. The criteria that the EPA recommends for an affirmative 

defense provision for malfunctions to be consistent with CAA requirements are restated 

in this notice at section VII.B, which also highlights EPA's view concerning case-by-case 

approval of affirmative defenses in the case of geographic areas and pollutants "where a 

single source or small group of sources has the potential to cause an exceedance of the 

NAAQS or PSD increments."

B. Affected States in EPA Region I 

1. Maine 

a. Petitioner's Analysis 

The Petitioner first objected to a specific provision in the Maine SIP that provides 

an exemption for certain boilers from otherwise applicable SIP visible emission limits 

during startup and shutdown (06-096-101 Me. Code R. § 3).93 The provision exempts 

violations of the otherwise applicable SIP emission limitations for boilers over a certain 

rated input capacity "during the first 4 hours following the initiation of cold startup or 

planned shutdown." The Petitioner recognized that this provision might operate as an 

affirmative defense because the exemption is only available once the person claiming an 

"exemption" establishes that the facility was being run to minimize emissions. The 

provision does not make clear who is authorized to determine whether the visible 

emission limits apply. The Petitioner argued that one plausible interpretation of this 

 

93 Petition at 43-44. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 125 of 322

provision is that state officials are "authorized to decide that the exemption applies and 

therefore preclude enforcement by the EPA and by citizens."94 The Petitioner argued that 

such an interpretation of this provision precluding enforcement by the EPA or citizens, 

both for civil penalties and injunctive relief, is forbidden by the EPA's interpretation of 

the CAA. Accordingly, the Petitioner requested that this provision be eliminated from the 

SIP. 

Second, the Petitioner objected to a provision that empowers the state to "exempt 

emissions occurring during periods of unavoidable malfunction or unplanned shutdown 

from civil penalty under section 349, subsection 2" (06-096-101 Me. Code R. § 4). The 

Petitioner noted that the provision "clearly provides an exemption at the discretion of the

department."95 The Petitioner argued that such a provision provides exemptions from the 

otherwise applicable SIP emission limitations, and such exemptions are inconsistent with 

the requirements of the CAA and the EPA's SSM Policy. Further, the Petitioner argued 

that the provision precludes enforcement by the EPA or citizens, both for civil penalties 

and injunctive relief, and that the EPA's interpretation of the CAA would forbid such a 

provision. 

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

 

94 Petition at 44.

95 Petition at 44.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 126 of 322

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitation must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. SIP provisions that create exemptions such that the excess 

emissions during startup, shutdown, or malfunctions are not violations of the applicable 

emission limitations are inconsistent with the fundamental requirements of the CAA with 

respect to emission limitations in SIPs. The EPA believes that inclusion of such an 

exemption in 06-096-101 Me. Code R. § 3 from the otherwise applicable SIP emission 

limitation for violations during the first 4 hours following cold startup or planned 

shutdown of boilers with a rated input capacity of more than 200 million BTU per hour is 

a substantial inadequacy and renders this specific SIP provision impermissible. 

With respect to the Petitioner's concern that this exemption could preclude 

enforcement by the EPA or citizens, the EPA agrees that this is one of the critical reasons 

why such a provision is impermissible under the CAA. By having a SIP provision that 

defines what would otherwise be violations of the applicable emission limitations as nonviolations, the state has effectively negated the ability of the EPA or the public to enforce 

against those violations. 

The EPA also believes that even if 06-096-101 Me. Code R. § 3 is interpreted to 

allow the source to make the required demonstration only in the context of an 

enforcement proceeding, the conditions set forth in the provision do not render it an 

acceptable affirmative defense provision. As explained in sections IV and VII.C of this 

notice, the EPA believes that affirmative defenses are only permissible under the CAA in 

the case of events that are beyond the control of the source, i.e., malfunctions.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 127 of 322

Affirmative defense provisions are not appropriate in the case of planned source actions, 

such as cold startup or planned shutdown, because sources should be expected to comply

with applicable emission limitations during those normal planned and predicted modes of 

source operation.

Finally, the EPA believes that 06-096-101 Me. Code R. § 4 is impermissible 

under the CAA as interpreted in the EPA's SSM Policy as an unbounded director's 

discretion provision. The provision authorizes a state official "to exempt emissions 

occurring during periods of unavoidable malfunction or unplanned shutdown from civil 

penalty under section 349, subsection 2." Although the reference to section 349, 

subsection 2 is to a Maine state penalty provision, the EPA believes that the provision is 

unclear as written. This provision could be read to mean that once the state official has 

exempted excess emissions during malfunctions from otherwise applicable SIP 

limitations, those excess emissions are not subject to any penalties, including penalties 

under CAA section 113. As discussed in section VII.A of this notice, such director's 

discretion provisions are impermissible. Such an interpretation would make the state 

official the unilateral arbiter of whether the excess emissions in a given event constitute a 

violation, which could preclude enforcement by the EPA or the public who might 

disagree about whether enforcement action is warranted. Most importantly, however, the 

provision may be read to authorize the state official to create an exemption from the 

emission limitation, and such an exemption is impermissible in the first instance. The 

EPA believes that inclusion of an unbounded director's discretion provision in 06-096-

101 Me. Code R. § 4 is thus a substantial inadequacy and renders this specific SIP 

provision impermissible for this reason. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 128 of 322

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to 06-096-101 Me. Code R. § 

3. The EPA believes that this provision allows for exemptions from the otherwise 

applicable SIP emission limitations, and that such exemptions are inconsistent with the 

fundamental requirements of the CAA with respect to emission limitations in SIPs as 

required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating 

these impermissible exemptions, the state has defined violations in a way that would 

interfere with effective enforcement by the EPA and the public for excess emissions 

during these events as provided in CAA sections 113 and 304. Even if the EPA were to 

consider 06-096-101 Me. Code R. § 3 to provide an affirmative defense rather than an 

automatic exemption, the provision is not a permissible affirmative defense provision 

consistent with the requirements of the CAA as interpreted in the EPA's 

recommendations in the EPA's SSM Policy. 

The EPA also proposes to grant the Petition with respect to 06-096-101 Me. Code 

R. § 4. The EPA believes that this provision, as written, applies only to state penalties. 

However, the EPA is concerned that the provision could cause confusion among the 

public, the regulated community, and the courts, who might interpret the provision as 

applying to both state and federal penalties. Of course, such an interpretation would seem 

to allow for exemptions from otherwise applicable emission limitations through a state 

official's unilateral exercise of unbounded discretionary authority and therefore be 

inconsistent with the fundamental requirements of the CAA with respect to SIPs and SIP 

revisions. To avoid any such misunderstanding, the EPA is proposing to find that these

provisions are substantially inadequate to meet CAA requirements and thus proposing to 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 129 of 322

issue a SIP call with respect to these provisions. 

2. New Hampshire 

a. Petitioner's Analysis 

The Petitioner objected to two generally applicable provisions in the New 

Hampshire SIP that allow emissions in excess of otherwise applicable SIP emission 

limitations during "malfunction or breakdown of any component part of the air pollution 

control equipment."96 The Petitioner argued that the challenged provisions provide an 

automatic exemption for excess emissions during the first 48 hours when any component 

part of air pollution control equipment malfunctions (N.H. Code R. Env-A 902.03) and 

further provide that "[t]he director may ... grant an extension of time or a temporary 

variance" for excess emissions outside of the initial 48-hour time period (N.H. Code R. 

Env-A 902.04). The Petitioner argued that N.H. Code R. Env-A 902.03 is an 

impermissible automatic exemption because it "provides that if certain conditions existed 

during a period of excess emissions, then those exceedances would not be considered 

violations."97 The Petitioner argued that such exemptions are inconsistent with the 

requirements of the CAA and the EPA's SSM Policy. The Petitioner argued that the CAA 

and the EPA's interpretation of the CAA in the SSM Policy require that all such excess 

emissions be treated as violations. The Petitioner further argued that both N.H. Code R. 

Env-A 902.03 and N.H. Code R. Env-A 902.04 appear "to authorize the division to allow 

[exemptions], which could be interpreted to preclude enforcement by EPA or citizens"98

for the excess emissions that would otherwise be violations of applicable SIP emission 

 

96 Petition at 52-53.

97 Petition at 52.

98 Petition at 53.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 130 of 322

limitations. 

Second, the Petitioner objected to two specific provisions in the New Hampshire 

SIP which provide source-specific exemptions for periods of startup for "any process, 

manufacturing and service industry" (N.H. Code R. Env-A 1203.05) and for pre-June 

1974 asphalt plants during startup, provided they are at 60-percent opacity for no more 

than 3 minutes (N.H. Code R. Env-A 1207.02).99 The Petitioner recognized that EPA 

permits source category-specific emission limitations for startup and shutdown if certain 

conditions are met. The Petitioner argued, however, that "[o]f the seven criteria EPA 

considers adequate to justify a source specific emission limit during startup and 

shutdown, section 1207.02 arguably meets only one of them and section 1203.05 meets 

none at all."100 The Petitioner thus requested that EPA require New Hampshire to remove 

both provisions from the SIP. 

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitation must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. SIP provisions that create exemptions such that the excess 

 

99 Petition at 52-53.

100 Petition at 53.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 131 of 322

emissions during startup, shutdown, or malfunctions are not violations are inconsistent 

with the fundamental requirements of the CAA with respect to emission limitations in 

SIPs. The first provision identified by the Petitioner, N.H. Code R. Env-A 902.03, 

explicitly states that "increased emissions shall be allowed" during "malfunction or 

breakdown of any component part of the air pollution control equipment." The third 

provision identified by the Petitioner, N.H. Code R. Env-A 1203.05, provides that 

applicable SIP emission limitations apply "for any process, manufacturing and service 

industry" "[e]xcept during periods of start-ups and warm-ups." Both of these provisions 

allow automatic exemptions during periods of startup from otherwise applicable SIP 

emission limitations for excess emissions and thus are inconsistent with the requirements 

of the CAA as interpreted in the EPA's SSM Policy. The EPA believes that inclusion of 

such exemptions from otherwise applicable SIP emission limitations in these provisions 

is a substantial inadequacy and renders these SIP provisions impermissible. 

Similarly, N.H. Code R. Env-A 1203.05 does not appear to comply with the Act's 

requirements for source category-specific rules for startup and shutdown as interpreted in

the EPA's SSM Policy. N.H. Code R. Env-A 1203.05 establishes a visible emissions limit 

for "any process, manufacturing and service industry" but further states that this limit 

does not apply during startups. Automatic exemptions from otherwise applicable SIP 

emission limitations for excess emissions during periods of startup are not permissible 

under the CAA. As discussed in section VII.A of this notice, states may elect to develop 

alternative emission limitations or other forms of enforceable control measures or 

techniques that apply during startup or shutdown, but exemptions for excess emissions 

during such periods are inconsistent with the fundamental requirements of the CAA. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 132 of 322

Similarly, N.H. Code R. Env-A 1207.02 provided an alternate opacity limit, "60 

percent opacity, No. 3 on the Ringelmann Smoke Chart," for pre-June 1974 asphalt plants 

during startups. The EPA believes that this alternate emissions limit does not meet the 

elements of the EPA's SSM Policy interpreting the CAA for establishing source-specific 

startup and shutdown alternative limits. However, after the Petitioner filed its Petition, 

the EPA acted on a SIP revision from New Hampshire correcting N.H. Code R. Env-A 

1207.02 and renaming that provision as N.H. Code R. Env-A 2703.02. The N.H. Code R. 

Env-A 2703.02, as rewritten and submitted by New Hampshire, corrected the deficiencies 

identified by the Petitioner and removed the alternative limitations applicable during 

startups for pre-June 1974 asphalt plants. The EPA approved New Hampshire's SIP 

revision with respect to N.H. Code R. Env-A 2703.02 on August 22, 2012.101 Thus, the 

Petitioner's objection to this provision is moot.

Finally, the EPA believes that N.H. Code R. Env-A 902.04 is impermissible under 

the CAA as interpreted in the EPA's SSM Policy, because it includes an unbounded 

director's discretion provision. The provision authorizes a state official to grant "an 

extension of time" to the time-limited exemption provided by N.H. Code R. Env-A 

902.03 or a "temporary variance" to an applicable SIP emission limitation during 

malfunctions of air pollution control equipment. This provision could be read to mean 

that once the state official has granted a time extension or temporary variance for excess 

emissions during malfunctions from otherwise applicable SIP limitations, those excess 

emissions are not violations. As discussed in section VII.A of this notice, such director's 

discretion provisions are impermissible. Such an interpretation would make the state 

 

101 See, 77 FR 50561 at 50608.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 133 of 322

official the unilateral arbiter of whether the excess emissions in a given event constitute a 

violation, which could preclude enforcement by the EPA or the public who might 

disagree about whether enforcement action is warranted. Most importantly, however, the 

provision may be read to authorize the state official to create an exemption from the 

emission limitation, and such an exemption is impermissible in the first instance. The 

EPA believes that inclusion of an unbounded director's discretion provision in N.H. Code 

R. Env-A 902.03 is thus a substantial inadequacy and renders this specific SIP provision 

impermissible for this reason. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to N.H. Code R. Env-A 

902.03 and N.H. Code R. Env-A 1203.05. The EPA believes that both of these provisions 

allow for automatic exemptions from otherwise applicable emission limitations and that 

such outright exemptions are inconsistent with the fundamental requirements of the CAA 

with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 

110(a)(2)(C), and 302(k). In addition, by creating these impermissible exemptions, the 

state has defined violations in a way that would interfere with effective enforcement by 

the EPA and citizens for excess emissions during these events as provided in CAA 

sections 113 and 304. For these reasons, the EPA is proposing to find that these 

provisions are substantially inadequate to meet CAA requirements and thus is proposing 

to issue a SIP call with respect to these provisions. 

The EPA proposes to grant the Petition with respect to N.H. Code R. Env-A 

902.04. The EPA believes that this provision allows for exemptions from otherwise 

applicable emission limitations through a state official's unilateral exercise of 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 134 of 322

discretionary authority that is unbounded. Such provisions are inconsistent with the 

fundamental requirements of the CAA with respect to emission limitations in SIPs as 

required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA 

is proposing to find that this provision is substantially inadequate to meet CAA 

requirements and thus proposing to issue a SIP call with respect to this provision. 

The EPA proposes to deny the Petition with respect to N.H. Code R. Env-A 

1207.02. New Hampshire has corrected the inadequacy identified by the Petitioner, and 

the EPA approved the SIP revision. Therefore, the Petitioner's objection is moot. 

3. Rhode Island 

a. Petitioner's Analysis 

The Petitioner objected to a generally applicable provision in the Rhode Island 

SIP that allows for a case-by-case petition procedure whereby a source can obtain a 

variance from state personnel under R.I. Gen. Laws § 23-23-15 to continue to operate 

during a malfunction of its control equipment that lasts more than 24 hours, if the source 

demonstrates that enforcement would constitute undue hardship without a corresponding 

benefit (25-4-13 R.I. Code R. § 16.2).102,103 The Petitioner argued that if the state grants 

the source's petition and provides a variance allowing the source to continue to operate, 

the facility could be excused from compliance with otherwise applicable SIP emission 

 

102 Petition at 63-65.

103 The EPA notes that the Petitioner also identified several additional provisions, 25-4-

13 R.I. Code R. §§ 13.4.1(a), 27.2.3 and 25-4-39 R.I. Code R. §§ 39.5.4, 39.7.5(a), 

39.7.6(b), 39.7.7(e), 39.7.8(f), 39.7.9(e), 39.7.11(c)(2), that it alleged are inconsistent 

with the CAA and the EPA's SSM Policy. However, the Petitioner did not request that the 

EPA address those provisions in its remedy request, and thus the EPA is not addressing 

those provisions in this action. The EPA may elect to evaluate those provisions in a later 

action. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 135 of 322

limitations during malfunction periods. The Petitioner argued that this provision could be 

read to preclude enforcement by the EPA or citizens in the event that the state elects not 

to treat the event as a violation of SIP emission limitations. Thus, the Petitioner argued, 

the provision is inconsistent with the CAA and the EPA's SSM Policy because it allows 

the state to make a unilateral decision that the excess emissions were not a violation and 

thus purports to bar enforcement for the excess emissions by the EPA and citizens. 

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitation must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. SIP provisions that create exemptions such that excess emissions 

during malfunctions are not violations are inconsistent with the fundamental requirements 

of the CAA with respect to emission limitations in SIPs. 

The EPA believes that 25-4-13 R.I. Code R. § 16.2 is impermissible under the 

CAA as interpreted in the EPA's SSM Policy, due to an insufficiently bounded director's 

discretion provision. The provision specifies a mechanism for a variance to be granted 

"[i]n the event that the malfunction of an air pollution control system is expected or may

reasonably be expected to continue for longer than 24 hours." This provision could be 

read to mean that once a state official has exempted excess emissions during 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 136 of 322

malfunctions from otherwise applicable SIP limitations, those excess emissions are not 

violations. As discussed in section VII.A of this notice, such director's discretion 

provisions are impermissible. Such an interpretation would make the state official the 

unilateral arbiter of whether the excess emissions in a given event constitute a violation, 

which could preclude enforcement by the EPA or the public who might disagree about 

whether enforcement action is warranted. Most importantly, however, the provision may

be read to authorize the state official to create an exemption from the emission limitation, 

and such an exemption is impermissible in the first instance. The EPA believes that 

inclusion of an insufficiently bounded director's discretion provision in 25-4-13 R.I. Code 

R. § 16.2 is thus a substantial inadequacy and renders this specific SIP provision 

impermissible for this reason. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to 25-4-13 R.I. Code R. § 

16.2. The EPA believes that this provision allows for exemptions from otherwise 

applicable emission limitations through a state official's unilateral exercise of 

discretionary authority that is insufficiently bounded. Such provisions are inconsistent 

with the fundamental requirements of the CAA with respect to emission limitations in 

SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, 

the EPA is proposing to find that this provision is substantially inadequate to meet CAA 

requirements and thus proposing to issue a SIP call with respect to this provision. 

C. Affected States in EPA Region II 

1. New Jersey

a. Petitioner's Analysis 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 137 of 322

The Petitioner objected to two specific provisions in the New Jersey SIP that 

allow for automatic exemptions for excess emissions during emergency situations.104 The 

Petitioner objected to the first provision because it provides industrial process units that 

have the potential to emit sulfur compounds an exemption from the otherwise applicable 

sulfur emission limitations where "[t]he discharge from any stack or chimney [has] the 

sole function of relieving pressure of gas, vapor or liquid under abnormal emergency

conditions" (N.J. Admin. Code 7:27-7.2(k)(2)). The Petitioner argued that such an 

exemption is inconsistent with the requirements of the CAA and the EPA's SSM Policy. 

The Petitioner argued that the CAA and the EPA's interpretation of the CAA in the SSM 

Policy require that all such excess emissions be treated as violations. 

The Petitioner objected to the second provision because it provides electric 

generating units (EGUs) an exemption from the otherwise applicable NOx emission 

limitations when the unit is operating at "emergency capacity," also known as a "MEG 

alert," which is statutorily defined as a period in which one or more EGUs is operating at 

emergency capacity at the direction of the load dispatcher in order to prevent or mitigate 

voltage reductions or interruptions in electric service, or both (N.J. Admin. Code 7:27-

19.1). The Petitioner argued that this source-specific exemption from the emission 

limitations "cannot ensure compliance with the NAAQS and PSD increments for NOx 

because ambient air quality is nowhere mentioned as a relevant consideration."105

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions from otherwise 

 

104 Petition at 53-54. 

105 Petition at 54.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 138 of 322

applicable SIP emission limitations. In accordance with the requirements of CAA section 

110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the 

definition of "emission limitations" in CAA section 302(k), such emission limitations 

must be continuous. Thus, any excess emissions above the level of the applicable 

emission limitation must be considered violations of such limitations, whether or not the 

state elects to exercise its enforcement discretion. SIP provisions that create exemptions 

such that excess emissions during emergency conditions, however defined, are not 

violations are inconsistent with the fundamental requirements of the CAA with respect to 

emission limitations in SIPs. 

The first provision identified by the Petitioner explicitly states that emission 

limitations of sulfur compounds "shall not apply" to emissions coming from a stack or a 

chimney during "abnormal emergency conditions," when the discharges are solely to 

relieve pressure of gas, vapor, or liquid. The EPA believes that inclusion of such an 

exemption from emission limitations in N.J. Admin. Code 7:27-7.2(k)(2) is a substantial 

inadequacy and renders this specific SIP provision impermissible. The EPA notes that 

this exemption is impermissible even though the state has imposed the limitation that 

such exemption would apply only during "abnormal emergency conditions." The core 

problem remains that the provision provides an impermissible exemption from the sulfur 

compound emission limitations otherwise applicable under the SIP. 

With regard to the second provision raised by the Petitioner (N.J. Admin. Code 

7:27-19.1), the EPA disagrees that it is a substantial inadequacy in the SIP, because the 

exemption from the NOx emission limitations ceased to be applicable after November 15, 

2005. Because the statute's exemption applies only to those emergency situations, or 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 139 of 322

"MEG alerts," that occur "on or before November 15, 2005" (N.J. Admin. Code 7:27-

19.1), the Petitioner's claim is moot. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to N.J. Admin. Code 7:27-

7.2(k)(2). The EPA believes that this provision allows for an exemption from the 

otherwise applicable emission limitations, and that such an exemption is inconsistent with 

the fundamental requirements of the CAA with respect to emission limitations in SIPs as 

required by CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For this reason, the 

EPA is proposing to find that this provision is substantially inadequate to meet CAA 

requirements and thus is proposing to issue a SIP call with respect to this provision. The 

EPA proposes to deny the Petition with respect to N.J. Admin. Code 7:27-19.1, because 

its effectiveness expired on November 15, 2005, and therefore Petitioner's claim with 

regard to the impermissibility of this provision is moot. 

2. [Reserved] 

D. Affected States in EPA Region III 

1. Delaware 

a. Petitioner's Analysis 

The Petitioner objected to seven provisions in the Delaware SIP that provide 

exemptions during startup and shutdown from the otherwise applicable SIP emission 

limitations.106 The seven source-specific and pollutant-specific provisions that provide 

exemptions during periods of startup and shutdown are: 7-1100-1104 Del. Code Regs § 

1.5 (Particulate Emissions from Fuel Burning Equipment); 7-1100-1105 Del. Code Regs 

 

106 Petition at 28-29. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 140 of 322

§ 1.7 (Particulate Emissions from Industrial Process Operations); 7-1100-1108 Del. Code 

Regs § 1.2 (Sulfur Dioxide Emissions from Fuel Burning Equipment); 7-1100-1109 Del. 

Code Regs § 1.4 (Emissions of Sulfur Compounds From Industrial Operations); 7-1100-

1114 Del. Code Regs § 1.3 (Visible Emissions); 7-1100-1124 Del. Code Regs § 1.4

(Control of Volatile Organic Compound Emissions); and 7-1100-1142 Del. Code Regs § 

2.3.5 (Specific Emission Control Requirements). These provisions provide exemptions to 

the emission limitations during startup and shutdown when "the emissions . . . during 

start-up and shutdown are governed by an operation permit issued pursuant to the 

provisions of 2.0 of 7 DE Admin. Code 1102." (E.g., 7-1100-1104 Del. Code Regs § 1.5.) 

The Petitioner objected to these provisions because they provide a state official 

with the discretion, through the permitting process, to exempt sources from otherwise 

applicable SIP emission limitations or to set alternative limitations for periods of startup 

and shutdown. The Petitioner argued that such discretion is not permissible because the 

CAA and the EPA's interpretation of the CAA in the SSM Policy require that all such 

excess emissions be treated as violations. Moreover, the Petitioner argued that any

alternative limits for periods of startup and shutdown created by the state official through 

the permitting process do not meet the requirements of the Act and the EPA's SSM 

Policy, because there is no requirement in the provision that the limits be narrowly 

tailored, source-specific, created in consultation with the EPA, and approved into the 

Delaware SIP by the EPA.

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 141 of 322

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitation must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. SIP provisions that create exemptions such that the excess 

emissions during startup and shutdown could be deemed not a violation of the applicable 

emission limitations are inconsistent with the fundamental requirements of the CAA with 

respect to emission limitations in SIPs. 

The EPA believes that the seven provisions raised by the Petitioner are 

impermissible because they are unbounded director's discretion provisions, created 

through the state permitting program, in which state officials are provided unbounded 

discretion to set alternative limits and could therefore provide an outright exemption from 

the emission limitations. In each of the provisions raised by the Petitioner, an exemption 

from the SIP's emission limitations during periods of startup and shutdown is 

automatically granted if the permit to which the source is subject has terms or conditions 

governing emissions during startup and shutdown. The SIP provisions therefore vest state 

officials with the unilateral power to establish alternative limits, or to create an exemption 

altogether, in permits by deeming such periods of excess emissions during startup and 

shutdown permissible. Were the state to exercise its discretion and decide on a case-bycase basis that such an event was not a violation of the emission limitations, the EPA and 

citizens could be precluded from enforcement. More importantly, however, an exemption 

from the emission limitations is impermissible in the first instance, and these provisions 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 142 of 322

purport to authorize state officials in the permitting context to grant such exemptions. 

These provisions therefore undermine the SIP's emission limitations and the emissions 

reductions they are intended to achieve and render them less enforceable by the EPA or 

through a citizen suit. The EPA believes that the inclusion of insufficiently bounded 

director's discretion provisions in 7-1100-1104 Del. Code Regs § 1.5, 7-1100-1105 Del. 

Code Regs § 1.7, 7-1100-1108 Del. Code Regs § 1.2, 7-1100-1109 Del. Code Regs § 1.4, 

7-1100-1114 Del. Code Regs § 1.3, 7-1100-1124 Del. Code Regs § 1.4, and 7-1100-1142 

Del. Code Regs § 2.3.5 is thus a substantial inadequacy and renders these specific SIP 

provisions impermissible for this reason. 

In addition, the EPA agrees with the Petitioner that while the CAA, as interpreted 

in the EPA's SSM Policy, allows states to set source category-specific alternative 

emission limitations or other forms of enforceable control measures or techniques that 

apply during periods of startup and shutdown, such alternative limitations are only

permitted in a narrow set of circumstances and must be accomplished through the 

appropriate SIP process (see section VII.A of this notice.) Those alternative limitations 

must be developed in consultation with the EPA and must be approved by the EPA into 

the SIP. The provisions of Delaware's SIP raised by the Petitioner purport to authorize the 

state to establish alternative limitations for excess emissions during periods of startup and 

shutdown (or to exempt those emissions altogether, as discussed above) on a case-bycase basis in the permitting process, and the provisions do not require the state to consult 

with the EPA or have those alternative limits approved by the EPA into the SIP. The EPA 

believes that the inclusion of processes to establish alternative limits for some sources 

and in regard to some pollutants in a manner that does not conform with the requirements 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 143 of 322

of the Act as interpreted in the EPA's SSM Policy in 7-1100-1104 Del. Code Regs § 1.5, 

7-1100-1105 Del. Code Regs § 1.7, 7-1100-1108 Del. Code Regs § 1.2, 7-1100-1109 

Del. Code Regs § 1.4, 7-1100-1114 Del. Code Regs § 1.3, 7-1100-1124 Del. Code Regs § 

1.4, and 7-1100-1142 Del. Code Regs § 2.3.5 is thus a substantial inadequacy and renders 

these specific SIP provisions impermissible, in addition to the creation of unbounded 

discretion in a state official. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to 7-1100-1104 Del. Code 

Regs § 1.5, 7-1100-1105 Del. Code Regs § 1.7, 7-1100-1108 Del. Code Regs § 1.2, 7-

1100-1109 Del. Code Regs § 1.4, 7-1100-1114 Del. Code Regs § 1.3, 7-1100-1124 Del. 

Code Regs § 1.4, and 7-1100-1142 Del. Code Regs § 2.3.5. The EPA believes that these 

provisions allow for exemptions from otherwise applicable SIP emission limitations, and 

that such outright exemptions are inconsistent with the fundamental requirements of the 

CAA with respect to emission limitations in SIPs in sections 110(a)(2)(A), 110(a)(C), and 

302(k). In addition, the aforementioned provisions each allow for such exemptions 

through a state official's unilateral exercise of insufficiently bounded discretionary 

authority in the permitting process, and such provisions are inconsistent with the 

fundamental requirements of the CAA with respect to SIPs and SIP revisions. Moreover, 

the discretion in these provisions also allows state officials to establish alternative 

emission limitations during periods of startup and shutdown through a process that does 

not conform to the requirements of the Act or the EPA's SSM Policy with regard to 

establishing alternative emission limitations. For these reasons, the EPA is proposing to 

find that these provisions are substantially inadequate to meet CAA requirements and 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 144 of 322

thus is proposing to issue a SIP call with respect to these provisions. 

2. District of Columbia 

a. Petitioner's Analysis

The Petitioner objected to five provisions in the District of Columbia (D.C.) SIP 

as being inconsistent with the CAA and the EPA's SSM Policy.

107 The Petitioner first 

objected to a generally applicable provision in the D.C. SIP that allows for discretionary

exemptions during periods of maintenance or malfunction (D.C. Mun. Regs. tit. 20 § 

107.3). The provision provides the Mayor with the authority to permit continued 

operation of a stationary source when air pollution controls are shut down due to 

maintenance or malfunction. The Petitioner argued that this provision could provide an 

exemption from the otherwise applicable SIP emission limitations, and such an 

exemption is impermissible under the CAA because the statute and the EPA's 

interpretation of the CAA in the SSM Policy require that all such excess emissions be 

treated as violations. Moreover, the Petitioner objected to this discretionary exemption 

because the Mayor's grant of permission to continue to operate during the period of 

malfunction or maintenance could be interpreted to excuse excess emissions during such 

time period and could thus be read to preclude enforcement by the EPA or citizens in the 

event that the Mayor elects not to treat the event as a violation. Thus, in addition to 

creating an impermissible exemption for the excess emissions, the Petitioner argued, the 

provision is also inconsistent with the CAA as interpreted in the EPA's SSM Policy

because it allows the Mayor to make a unilateral decision that the excess emissions were 

not a violation and thus purports to bar enforcement for the excess emissions by the EPA 

 

107 Petition at 29-30.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 145 of 322

and citizens.

Secondly, the Petitioner objected to the alternative limitations on stationary

sources for visible emissions during periods of "start-up, cleaning, soot blowing, 

adjustment of combustion controls, or malfunction," (D.C. Mun. Regs. tit. 20 § 606.1) 

and, for fuel-burning equipment placed in initial operation before January 1977, 

alternative limits for visible emissions during startup and shutdown (D.C. Mun. Regs. tit. 

20 § 606.2). The Petitioner also objected to the exemption from emission limitations for 

emergency standby engines (D.C. Mun. Regs. tit. 20 § 805.1(c)(2)). The Petitioner 

argued that these provisions could provide exemptions or deviations from the otherwise 

applicable SIP emission limitations, and such exemptions are impermissible under the 

CAA because the statute and the EPA's interpretation of the CAA in the SSM Policy

require that all such excess emissions be treated as violations. Moreover, the Petitioner 

argued that the alternative limits do not appear to meet the criteria for a source categoryspecific rule as permitted under the EPA's SSM Policy interpreting the Act. 

Finally, the Petitioner objected to the provision in the D.C. SIP that provides an 

affirmative defense for violations of visible emission limitations during "unavoidable 

malfunction" (D.C. Mun. Regs. tit. 20 § 606.4). The Petitioner objected to this provision 

because the elements of the defense are not laid out clearly in the SIP, because the term 

"affirmative defense" is not defined in the SIP, and finally, the Petitioner argues, because 

affirmative defenses for any excess emissions are wholly inconsistent with the CAA and 

should be removed from the SIP. 

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions from otherwise 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 146 of 322

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitation must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. SIP provisions that create exemptions such that the excess 

emissions during startup, shutdown, load change, or emergencies are not violations of the

applicable emission limitations are inconsistent with the fundamental requirements of the 

CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of 

such an exemption from the emission limitations in D.C. Mun. Regs. tit. 20 § 107.3 is 

thus a substantial inadequacy and renders this specific SIP provision impermissible. 

The EPA believes that D.C. Mun. Regs. tit. 20 § 107.3 is also impermissible due 

to an unbounded director's discretion provision that purports to make the Mayor the 

unilateral arbiter of whether the excess emissions in a given event constitute a violation. 

In the case of D.C. Mun. Regs. tit. 20 § 107.3, the provision authorizes the Mayor to 

permit continued operation at stationary sources without functioning air pollution control 

equipment. The Mayor's grant of permission to continue to operate during the period of 

malfunction or maintenance could be interpreted to excuse excess emissions from that 

time period, and it could thus be read to preclude enforcement by the EPA or through a 

citizen suit in the event that the Mayor elects not to treat the event as a violation. In 

addition, the provision vests the Mayor with the unilateral power to grant an exemption 

from the otherwise applicable SIP emission limitation, without any additional public 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 147 of 322

process at the D.C. or federal level, and without any bounds or parameters to the exercise 

of this discretion. Most importantly, however, the provision purports to authorize the 

Mayor to create an exemption from the emission limitation, and such an exemption is 

impermissible in the first instance. Such a director's discretion provision undermines the 

emission limitations and the emissions reductions they are intended to achieve and 

renders them less enforceable by the EPA or through a citizen suit. The EPA believes that 

the inclusion of an unbounded director's discretion provision in D.C. Mun. Regs. tit. 20 § 

107.3 is thus a substantial inadequacy and renders this specific SIP provision 

impermissible for this reason, in addition to the creation of an impermissible exemption. 

The EPA notes that while the CAA does not allow for exemptions for excess 

emissions, it does, as discussed in section VII.A of this notice, allow states to develop 

alternative emission limitations or other forms of enforceable control measures or 

techniques that apply during startup or shutdown. The EPA believes that emission 

limitations in SIPs should generally be developed in the first instance to account for the 

types of normal operation outlined in D.C. Mun. Regs. tit. 20 § 606.1, such as cleaning, 

soot blowing, and adjustment of combustion controls. The D.C. Mun. Regs. tit. 20 §§ 

606.1 and 606.2 do not appear to comply with the CAA's requirements as interpreted in 

the EPA's SSM Policy. The alternative limitations on stationary sources for visible 

emissions during periods of "start-up, cleaning, soot blowing, adjustment of combustion 

controls, or malfunction," (D.C. Mun. Regs. tit. 20 § 606.1) do not comply with the Act 

and the EPA's policy interpreting the Act, because, for instance, they do not apply only to 

"specific, narrowly-defined source categories using specific control strategies."108 The 

 

108 1999 SSM Guidance Attachment at 4-5.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 148 of 322

EPA believes that the inclusion of these alternative limitations, which do not comply with 

the requirements of the Act, in D.C. Mun. Regs. tit. 20 §§ 606.1 and 606.2 is thus a 

substantial inadequacy and renders these specific SIP provisions impermissible. 

With respect to the Petitioner's objection to the exemption for emergency standby

engines (D.C. Mun. Regs. tit. 20 § 805.1(c)(2)), the EPA disagrees that this provision 

applies to an exemption from emission limitations during startup, shutdown, or 

malfunction periods. Instead, this provision applies to a specific source category that is 

not subject to control under the D.C. SIP. At this point in time, the SIP reflects that 

regulation of this source category is not necessary in the SIP in order to meet the 

applicable reasonably available control technology (RACT) requirements or other CAA 

requirements in this area. The EPA therefore disagrees with Petitioner that D.C. Mun. 

Regs. tit. 20 § 805.1(c)(2) renders the D.C. SIP substantially inadequate. 

Finally, the EPA agrees with the Petitioner that the affirmative defense contained 

in D.C. Mun. Regs. tit. 20 § 606.4 is not an acceptable affirmative defense provision 

under the CAA as interpreted the EPA's SSM Policy. Although the EPA believes that 

narrowly drawn affirmative defenses are permitted under the CAA for malfunction events 

(see section VII.B of this notice), the EPA's interpretation of the CAA is that such 

affirmative defenses can only shield the source from monetary penalties and cannot be a 

bar to injunctive relief. An affirmative defense provision that purports to bar any

enforcement action for injunctive relief for violations of emission limitations is 

inconsistent with the requirements of CAA sections 113 and 304. Furthermore, the SIP 

provision is deficient because while it appears to create an affirmative defense, it does so 

with conditions that are not consistent with the criteria that the EPA recommends in the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 149 of 322

SSM Policy. The EPA acknowledges that the SSM Policy is only guidance concerning 

what types of SIP provisions could be consistent with the requirements of the CAA. 

Nonetheless, through this rulemaking, the EPA is proposing to determine that D.C. Mun. 

Regs. tit. 20 § 606.4 does not include criteria that are sufficiently robust to qualify as an 

acceptable affirmative defense provision. The EPA believes that the inclusion of the 

complete bar to liability, including injunctive relief, and the insufficiently robust 

qualifying criteria in D.C. Mun. Regs. tit. 20 § 606.4 are substantial inadequacies and 

render this specific SIP provision impermissible. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to D.C. Mun. Regs. tit. 20 § 

107.3. The EPA believes that this provision allows for exemptions from the otherwise 

applicable SIP emission limitations, and that such exemptions are inconsistent with the 

fundamental requirements of the CAA with respect to emission limitations in SIPs in 

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, D.C. Mun. Regs. tit. 20 § 

107.3 allows for such an exemption through a state official's unilateral exercise of 

discretionary authority that is unbounded and includes no additional public process at the 

D.C. or federal level, and such provisions are inconsistent with the fundamental 

requirements of the CAA with respect to SIPs and SIP revisions. For these reasons, the 

EPA is proposing to find that D.C. Mun. Regs. tit. 20 § 107.3 is substantially inadequate 

to meet CAA requirements and thus proposing to issue a SIP call with respect to this 

provision. 

The EPA also proposes to grant the Petition with respect to D.C. Mun. Regs. tit. 

20 §§ 606.1 and 606.2. The EPA believes that section 606.1 impermissibly provides an 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 150 of 322

alternative visible emission limitation to stationary sources during periods of malfunction 

and during planned maintenance events. Furthermore, while sections 606.1 and 606.2 

appropriately provide alternative visible emission limitations only during periods of 

startup and shutdown, both sections apply to a broad category of sources and are not 

narrowly limited to a source category employing a specific control strategy, as required 

by the CAA as interpreted in the EPA's SSM Policy. For these reasons, the EPA is 

proposing to find that D.C. Mun. Regs. tit. 20 §§ 606.1 and 606.2 are substantially

inadequate to meet CAA requirements and is thus proposing to issue a SIP call with 

respect to these provisions. 

The EPA proposes to deny the Petition with respect to D.C. Mun. Regs. tit. 20 § 

805.1(c)(2). The EPA disagrees that this provision applies to an exemption from emission 

limitations during startup, shutdown, or malfunction periods. Rather, this provision 

applies to a specific source category that is not subject to control under the D.C. SIP. At

this point in time, the SIP reflects that regulation of this source category is not necessary

in the SIP in order to meet the applicable RACT requirements or other CAA requirements 

in this area. 

Finally, the EPA proposes to grant the petition with respect to D.C. Mun. Regs. 

tit. 20 § 606.4 because it is not a permissible affirmative defense provision consistent 

with the requirements of the CAA and the EPA's recommendations in the EPA's SSM 

Policy. By purporting to create a bar to enforcement that applies not just to monetary

penalties but also to injunctive relief, this provision is inconsistent with the requirements 

of CAA sections 113 and 304. By not including sufficient criteria to assure that sources 

seeking to raise the affirmative defense have in fact been properly designed, maintained, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 151 of 322

and operated, and to assure that sources have taken all appropriate steps to minimize 

excess emissions, the provision also fails to be sufficiently narrowly drawn to justify

shielding from monetary penalties for violations. Thus, this provision is not appropriate 

as an affirmative defense provision because it is inconsistent with fundamental 

requirements of the CAA. For these reasons, the EPA is proposing to find that this 

provision is substantially inadequate to meet CAA requirements and thus proposing to 

issue a SIP call with respect to this provision. 

3. Virginia 

a. Petitioner's Analysis 

The Petitioner objected to a generally applicable provision in the Virginia SIP that 

allows for discretionary exemptions during periods of malfunction (9 Va. Admin. Code § 

5-20-180(G)).109 First, the Petitioner objected because this provision provides an 

exemption from the otherwise applicable SIP emission limitations, and such an 

exemption is impermissible under the CAA because the statute and the EPA's 

interpretation of the CAA in the SSM Policy require that all such excess emissions be 

treated as violations. The Petitioner argued that the CAA and the EPA's interpretation of 

the CAA in the SSM Policy require that all such excess emissions be treated as 

violations. 

Second, the Petitioner objected to the discretionary exemption for excess 

emissions during malfunction because the provision gives the state the authority to 

determine whether a violation "shall be judged to have taken place" (9 Va. Admin. Code 

§ 5-20-180(G)). The Petitioner argued that this provision could be read to preclude 

 

109 Petition at 70-71. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 152 of 322

enforcement by the EPA or citizens in the event that the state elects not to treat the event 

as a violation. Thus, in addition to creating an impermissible exemption for the excess 

emissions, the Petitioner argued, the provision is also inconsistent with the CAA and the 

EPA's SSM Policy because it allows the state to make a unilateral decision that the excess 

emissions were not a violation and thus purports to bar enforcement for the excess 

emissions by the EPA and citizens. 

Third, the Petitioner argued that while the regulation provides criteria, akin to an 

affirmative defense, by which the state must make such a judgment that the event is not a 

violation, the criteria "fall far short of EPA policy" and the provision "fails to establish 

any procedure through which the criteria are to be evaluated." 

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitation must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. SIP provisions such as 9 Va. Admin. Code § 5-20-180(G) that 

create exemptions by authorizing the state to determine that the excess emissions during 

startup, shutdown, load change, or emergencies are not violations of the applicable 

emission limitations are inconsistent with the fundamental requirements of the CAA with 

respect to emission limitations in SIPs. The EPA believes that the inclusion of such an 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 153 of 322

exemption in 9 Va. Admin. Code § 5-20-180(G) is thus a substantial inadequacy and 

renders this specific SIP provision impermissible. 

The EPA believes that 9 Va. Admin. Code § 5-20-180(G) is also impermissible 

due to the inclusion of a director's discretion provision that purports to make the state 

official the unilateral arbiter of whether the excess emissions in a given malfunction 

event constitute a violation. In the case of 9 Va. Admin. Code § 5-20-180(G), the 

provision authorizes the state official to judge that "no violation" has taken place. The 

provision therefore vests the state official with the unilateral power to grant an exemption 

from the otherwise applicable SIP emission limitation, without any additional public 

process at the state or federal level. By deciding that an exceedance of the emission 

limitation was not a "violation," exercise of this discretion could preclude enforcement by

the EPA or the public who may not agree with that conclusion. Most importantly, 

however, the provision purports to authorize the state official to create an exemption from 

the otherwise applicable SIP emission limitation, and such an exemption is impermissible 

in the first instance. Such a director's discretion provision undermines the emission 

limitations in the SIP and the emissions reductions that they are intended to achieve and 

renders them less enforceable by the EPA or through a citizen suit. The EPA believes that 

the inclusion of a director's discretion provision in 9 Va. Admin. Code § 5-20-180(G) is 

thus a substantial inadequacy and renders this specific SIP provision impermissible for 

this reason, in addition to the creation of an impermissible exemption. 

Finally, the EPA agrees with Petitioner that although the exemption requires that 

certain conditions must be met by the source, the conditions set forth in the provision do 

not render it an acceptable affirmative defense provision. The Petitioner is correct that 9 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 154 of 322

Va. Admin. Code § 5-20-180(G) is not an acceptable affirmative defense provision under 

the CAA as interpreted in the EPA's SSM Policy. Although the EPA believes that 

narrowly drawn affirmative defenses are permitted under the CAA for malfunction events 

(see section VII.B of this notice), the EPA's interpretation of the CAA is that such 

affirmative defenses can only shield the source from monetary penalties and cannot be a 

bar to injunctive relief. An affirmative defense provision that purports to bar any

enforcement action for injunctive relief for violations of emission limitations is 

inconsistent with the requirements of CAA sections 113 and 304. Furthermore, Virginia's 

SIP provision is deficient because even if it attempts to create an affirmative defense 

rather than an automatic exemption from the emission limitations, it does so with 

conditions that are not consistent with the criteria that the EPA recommends in the SSM 

Policy. The EPA acknowledges that the SSM Policy is only guidance concerning what 

types of SIP provisions could be consistent with the requirements of the CAA. 

Nonetheless, through this rulemaking, the EPA is proposing to determine that 9 Va. 

Admin. Code § 5-20-180(G) does not include criteria that are sufficiently robust to 

qualify as an acceptable affirmative defense provision under the CAA. The EPA believes 

that the inclusion of the complete bar to liability, including injunctive relief, and the 

insufficiently robust qualifying criteria in 9 Va. Admin. Code § 5-20-180(G) are 

substantial inadequacies and render this specific SIP provision impermissible. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to 9 Va. Admin. Code § 5-

20-180(G). The EPA believes that this provision allows for an exemption from the 

otherwise applicable SIP emission limitations, and that such exemptions are inconsistent 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 155 of 322

with the fundamental requirements of the CAA with respect to emission limitations in 

SIPs in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, 9 Va. Admin. Code 

§ 5-20-180(G) allows for such an exemption through a state official's unilateral exercise 

of discretionary authority that includes no additional public process at the state or federal 

level, and such provisions are inconsistent with the fundamental requirements of the 

CAA with respect to SIPs and SIP revisions. 

Moreover, even if the EPA were to consider 9 Va. Admin. Code § 5-20-180(G) as 

providing for an affirmative defense rather than an automatic exemption, the provision is 

not a permissible affirmative defense provision consistent with the requirements of the 

CAA as interpreted in the EPA's recommendations in the EPA's SSM Policy. By

purporting to create a bar to enforcement that applies not just to monetary penalties but 

also to injunctive relief, this provision is inconsistent with the requirements of CAA 

sections 113 and 304. By not including sufficient criteria to assure that sources seeking to 

raise the affirmative defense have in fact been properly designed, maintained, and 

operated, and to ensure that sources have taken all appropriate steps to minimize excess 

emissions, the provision also fails to be sufficiently narrowly drawn to justify shielding 

from monetary penalties for violations. Thus, this provision is not appropriate as an 

affirmative defense provision because it is inconsistent with fundamental requirements of 

the CAA. 

For these reasons, the EPA is proposing to find that this provision is substantially

inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect 

to this provision. 

4. West Virginia 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 156 of 322

a. Petitioner's Analysis 

The Petitioner made four types of objections identifying inadequacies regarding 

startup, shutdown, and malfunction provisions in West Virginia's SIP.110 First, the 

Petitioner objected to three specific provisions in the West Virginia SIP that allow for 

automatic exemptions from emission limitations, standards, and monitoring and 

recordkeeping requirements for excess emission during startup, shutdown, or malfunction 

(W. Va. Code R. § 45-2-9.1, W. Va. Code R. §45-7-10.3, and W. Va. Code R. §45-40-

100.8). The Petitioner objected because all three of these provisions provide exemptions 

from the otherwise applicable SIP emission limitations, and such exemptions are 

inconsistent with the requirements of the CAA as interpreted in the EPA's SSM Policy. 

The Petitioner argued that the CAA and the EPA's interpretation of the CAA in the SSM 

Policy require that all such excess emissions be treated as violations. The Petitioner also 

objected to all three of these provisions because, by providing an outright exemption 

from otherwise applicable requirements, the state has defined these excess emissions as 

not violations, thereby precluding enforcement by the EPA or citizens for the excess 

emissions that would otherwise be violations. 

Second, the Petitioner objected to seven discretionary exemption provisions 

because these provisions provide exemptions from the otherwise applicable SIP emission 

limitations, and such exemptions are impermissible under the CAA because the statute 

and the EPA's interpretation of the CAA in the SSM Policy require that all such excess 

emissions be treated as violations. The Petitioner noted that the provisions allow a state 

official to "grant an exception to the otherwise applicable visible emissions standards" 

 

110 Petition at 72-74. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 157 of 322

due to "unavoidable shortage of fuel" or "any emergency situation or condition creating a 

threat to public safety or welfare" (W. Va. Code R. § 45-2-10.1), to permit excess 

emissions "due to unavoidable malfunctions of equipment" (W. Va. Code R. § 45-3-7.1, 

W. Va. Code R. § 45-5-13.1, W. Va. Code R. § 45-6-8.2, W. Va. Code R. § 45-7-9.1, and 

W. Va. Code R. § 45-10-9.1), and to permit exceedances where the limit cannot be 

"satisfied" because of "routine maintenance" or "unavoidable malfunction" (W. Va. Code 

R. §45-21-9.3). The Petitioner argued that these provisions could be read to preclude 

enforcement by the EPA or citizens in the event that the state official elects not to treat 

the event as a violation. Thus, in addition to creating an impermissible exemption for the 

excess emissions, the Petitioner argued, the SIP's provisions are also inconsistent with the 

CAA as interpreted in the EPA's SSM Policy because they allow the state official to 

make a unilateral decision that the excess emissions were not a violation and thus purport 

to bar enforcement for the excess emissions by the EPA and citizens. 

Third, the Petitioner objected to the alternative limit imposed on hot mix asphalt 

plants during periods of startup and shutdown in W. Va. Code R. § 45-3-3.2 because it 

was "not sufficiently justified" under the requirements of source category-specific rules. 

The Petitioner argued that this provision could provide an unacceptable deviation during 

periods of startup and shutdown from the otherwise applicable SIP emission limitations, 

and such deviations are impermissible under the CAA because the statute and the EPA's 

interpretation of the CAA in the SSM Policy require that all such excess emissions be 

treated as violations. Moreover, the Petitioner argued that the alternative limits do not 

appear to meet the criteria for a source category-specific rule as permitted under the Act 

as interpreted in the EPA's SSM Policy. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 158 of 322

Fourth, the Petitioner objected to a discretionary provision allowing the state to 

approve an alternative visible emission standard during startups and shutdowns for 

manufacturing processes and associated operations (W. Va. Code R. § 45-7-10.4). The 

Petitioner argued that such a provision "allows a decision of the state to preclude 

enforcement by EPA and citizens." 

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for automatic exemptions from 

otherwise applicable SIP emission limitations. In accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance 

with the definition of "emission limitations" in CAA section 302(k), such emission 

limitations must be continuous. Thus, any excess emissions above the level of the 

applicable emission limitation must be considered violations of such limitations, whether 

or not the state elects to exercise its enforcement discretion. SIP provisions that create 

exemptions such that the excess emissions during startup, shutdown, or malfunction are 

not violations are inconsistent with the fundamental requirements of the CAA with 

respect to emission limitations in SIPs. Two of the automatic exemption provisions 

identified by the Petitioner explicitly state that the standards shall not apply or that certain 

operations "shall be exempt" during periods of startup, shutdown, malfunction, or 

maintenance (W. Va. Code R. § 45-2-9.1, W. Va. Code R. § 45-7-10.3). The third 

automatic exemption states that requirements for monitoring, recordkeeping, and 

reporting will not apply under certain circumstances (W. Va. Code R. § 45-40-100.8). 

Such an exemption would affect the enforceability of the emission limitations and thus 

adversely affects the approvability of the emission limitations themselves. Moreover, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 159 of 322

failure to account accurately for excess emissions at sources during SSM events has a 

broader impact on NAAQS implementation and SIP planning, because such accounting 

directly informs the development of emissions inventories and emissions modeling. The 

exemptions therefore provide that the resulting excess emissions will not be violations, 

which is contrary to the requirements of the CAA. The EPA believes that the inclusion of 

such automatic exemptions from emission limitations in W. Va. Code R. § 45-2-9.1, W. 

Va. Code R. § 45-7-10.3, and W. Va. Code R. § 45-40-100.8, is thus a substantial 

inadequacy and renders these specific SIP provisions impermissible. 

With respect to the Petitioner's concern that these exemptions preclude 

enforcement by the EPA or citizens, the EPA agrees that this is one of the critical reasons 

why such provisions are impermissible under the CAA. By having SIP provisions that 

define what would otherwise be violations of the applicable emission limitations as nonviolations, the state has effectively negated the ability of the EPA or the public to enforce 

against those violations. 

The EPA also agrees that the CAA does not allow for discretionary exemptions 

from otherwise applicable SIP emission limitations. As noted above, in accordance with 

the requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations 

and, in accordance with the definition of "emission limitations" in CAA section 302(k), 

such emission limitations must be continuous. Thus, any excess emissions above the level 

of the applicable emission limitation must be considered violations, whether or not the 

state elects to exercise its enforcement discretion. SIP provisions such as W. Va. Code R. 

§ 45-2-10.1, W. Va. Code R. §45-3-7.1, W. Va. Code R. §45-5-13.1, W. Va. Code R. 

§45-6-8.2, W. Va. Code R. §45-7-9.1, W. Va. Code R. §45-10-9.1, and W. Va. Code R. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 160 of 322

§45-21-9.3 that create exemptions by permitting the state to determine that the excess 

emissions during startup, shutdown, load change, or emergencies are not violations of the 

applicable emission limitations are inconsistent with the fundamental requirements of the 

CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of 

these discretionary exemptions in the SIP is thus a substantial inadequacy and renders 

these specific SIP provisions impermissible. 

The EPA believes that W. Va. Code R. § 45-2-10.1, W. Va. Code R. § 45-3-7.1, 

W. Va. Code R. § 45-5-13.1, W. Va. Code R. § 45-6-8.2, W. Va. Code R. § 45-7-9.1, W. 

Va. Code R. § 45-10-9.1, and W. Va. Code R. § 45-21-9.3 are also impermissible 

because these provisions purport to make a state official the unilateral arbiter of whether 

the excess emissions in a given malfunction, maintenance, or emergency event constitute 

a violation. In the case of W. Va. Code R. § 45-2-10.1, the provision allows the state 

official to "grant an exception to the otherwise applicable visible emissions standards" 

due to "unavoidable shortage of fuel" or "any emergency situation or condition creating a 

threat to public safety or welfare." W. Va. Code R. § 45-3-7.1, W. Va. Code R. § 45-5-

13.1, W. Va. Code R. § 45-6-8.2, W. Va. Code R. § 45-7-9.1, and W. Va. Code R. § 45-

10-9.1 permit excess emissions "due to unavoidable malfunctions of equipment." The 

provision at W. Va. Code R. §45-21-9.3 permits exceedances where the limit cannot be 

"satisfied" because of "routine maintenance" or "unavoidable malfunction." 

These provisions authorize the state official to judge that violations have not 

occurred even though the emissions exceeded the applicable SIP emission limitations. 

The SIP's provisions therefore vest the state official with the unilateral power to grant 

exemptions from otherwise applicable SIP emission limitations, without any additional 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 161 of 322

public process at the state or federal level. By deciding that an exceedance of the 

emission limitation was not a "violation," exercise of this discretion could preclude 

enforcement by the EPA or through a citizen suit. Most importantly, however, the 

provision purports to authorize the state official to create an exemption from the 

otherwise applicable SIP emission limitation, and such an exemption is impermissible in 

the first instance. Such a director's discretion provision undermines the emission 

limitations and the emissions reductions they are intended to achieve and renders them 

less enforceable by the EPA or through a citizen suit. The EPA believes that the inclusion 

of director's discretion provisions in W. Va. Code R. § 45-2-10.1, W. Va. Code R. § 45-

3-7.1, W. Va. Code R. § 45-5-13.1, W. Va. Code R. § 45-6-8.2, W. Va. Code R. § 45-7-

9.1, W. Va. Code R. § 45-10-9.1, and W. Va. Code R. § 45-21-9.3 is thus a substantial 

inadequacy and renders these specific SIP provisions impermissible for this reason, in 

addition to the creation of an impermissible exemption. 

The EPA notes that while the CAA does not allow for exemptions for excess 

emissions, it does, as discussed in section VII.A of this notice, permit states to develop 

alternative emission limitations or other forms of enforceable control measures or 

techniques that apply during startup or shutdown. W. Va. Code R. § 45-3-3.2 and W. Va. 

Code R. § 45-2-10.2111 do not appear to comply with the Act's requirements as 

interpreted in the EPA's SSM Policy. The alternative smoke and/or particulate matter 

limitation on hot mix asphalt plants that applies during periods of startup and shutdown 

(W. Va. Code R. § 45-3-3.2) does not comply with the CAA as interpreted in the EPA's 

 

111 The EPA notes that the Petitioner specifically focused on concern with W. Va. Code 

R. § 45-2-10.1, but the same issue affects W. Va. Code R. § 45-2-10.2. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 162 of 322

policy because, for instance, it does not apply only to "specific, narrowly-defined source 

categories using specific control strategies."112 W. Va. Code R. § 45-2-10.2, which allows 

fuel-burning units employing flue gas desulphurization systems to bypass such systems 

during "necessary planned or unplanned maintenance" and provides an alternative limit 

of 20-percent opacity during such periods, also does not comply with the CAA as 

interpreted in the EPA's SSM Policy. The EPA believes that such special emission

limitations or emissions controls may be appropriate during startup or shutdown, but 

other modes of normal source operation, including maintenance, should be accounted for 

in the development of the emission limitations themselves. The EPA believes that the 

inclusion of alternative limits that do not meet the requirements of the CAA as interpreted 

in the EPA's SSM Policy in W. Va. Code R. § 45-3-3.2 and W. Va. Code R. § 45-2-10.2 

is thus a substantial inadequacy and renders these specific SIP provisions impermissible 

for this reason. 

The EPA also agrees that the discretionary provision allowing a state official to 

approve an alternative visible emission standard during startups and shutdowns for 

manufacturing processes and associated operations (W. Va. Code R. § 45-7-10.4) does 

not comply with the CAA or the EPA's SSM Policy interpreting the CAA. These 

provisions purport to authorize the state official to establish alternative limits for excess 

emissions during periods of startup and shutdown (or, potentially, to exempt those 

emissions altogether) on a case-by-case basis, and these provisions do not require the 

state official to consult with the EPA or to have those alternative limits approved by the 

EPA into the SIP, contrary to the EPA's SSM Policy interpreting the requirements of the 

 

112 1999 SSM Guidance Attachment at 4-5. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 163 of 322

CAA. The EPA believes that the inclusion of these alternative limitations, which do not 

comply with the EPA's interpretations of the requirements of the CAA, in W. Va. Code 

R. § 45-3-3.2 and W. Va. Code R. § 45-7-10.4, is thus a substantial inadequacy and 

renders these specific SIP provisions impermissible. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to W. Va. Code R. § 45-2-

9.1, W. Va. Code R. § 45-7-10.3, and W. Va. Code R. § 45-40-100.8. The EPA believes 

that each of these provisions allows for automatic exemptions from the otherwise 

applicable SIP emission limitations, and that such exemptions are inconsistent with the 

fundamental requirements of the CAA with respect to emission limitations in SIPs as 

required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating 

these impermissible exemptions, the state has defined violations in way that would 

interfere with effective enforcement by the EPA and citizens for excess emissions during 

these events as provided in CAA sections 113 and 304. For these reasons, the EPA is 

proposing to find that these provisions are substantially inadequate to meet CAA 

requirements and thus proposing to issue a SIP call with respect to these provisions. 

The EPA proposes to grant the Petition with respect to W. Va. Code R. § 45-2-

10.1, W. Va. Code R. § 45-3-7.1, W. Va. Code R. § 45-5-13.1, W. Va. Code R. § 45-6-

8.2, W. Va. Code R. § 45-7-9.1, W. Va. Code R. § 45-10-9.1, and W. Va. Code R. § 45-

21-9.3. The EPA believes that these provisions allow for discretionary exemptions from 

otherwise applicable SIP emission limitations, and that such exemptions are inconsistent 

with the fundamental requirements of the CAA with respect to emission limitations in 

SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, these 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 164 of 322

provisions allow for exemptions through a state official's unilateral exercise of 

discretionary authority that includes no additional public process at the state or federal 

level, and such provisions are inconsistent with the fundamental requirements of the 

CAA with respect to SIPs and SIP revisions. 

The EPA also proposes to grant the Petition with respect to W. Va. Code R. § 45-

3-3.2, W. Va. Code R. § 45-2-10.2, and W. Va. Code R. § 45-7-10.4. The W. Va. Code 

R. § 45-3-3.2 applies to a broad category of sources and is not narrowly limited to a 

source category that uses a specific control strategy, as required by the EPA's SSM Policy

interpreting the CAA. Similarly, W. Va. Code R. § 45-2-10.2 is inconsistent with the 

EPA's SSM Policy interpreting the CAA because it is an alternative limit that applies 

during periods of maintenance, and such alternative limits are only permissible during 

periods of startup and shutdown. The W. Va. Code R. § 45-7-10.4 allows state officials 

the discretion to establish alternative visible emissions standards during startup and 

shutdown upon application. This provision is inconsistent with the EPA's SSM Policy

and requirements under the Act because, for example, the emission limitations are 

required to be developed in consultation with the EPA and must be included in the SIP 

itself. For these reasons, the EPA is proposing to find that W. Va. Code R. § 45-3-3.2, W. 

Va. Code R. § 45-2-10.2, and W. Va. Code R. § 45-7-10.4 are substantially inadequate to 

meet CAA requirements and is thus proposing to issue a SIP call with respect to these 

provisions. 

E. Affected States and Local Jurisdictions in EPA Region IV 

1. Alabama

a. Petitioner's Analysis
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 165 of 322

The Petitioner objected to two generally applicable provisions in the Alabama SIP 

that allow for discretionary exemptions during startup, shutdown, or load change (Ala 

Admin Code Rule 335-3-14-.03(1)(h)(1)), and during emergencies (Ala Admin Code 

Rule 335-3-14-.03(1)(h)(2)).113,114 First, the Petitioner objected because both of these 

provisions provide exemptions from the otherwise applicable emission limitations, and 

such exemptions are inconsistent with the requirements of the CAA and the EPA's SSM 

Policy. The Petitioner argued that the CAA and the EPA's interpretation of the CAA in 

the SSM Policy require that all such excess emissions be treated as violations. 

Second, the Petitioner objected to the discretionary exemptions for excess 

emissions during startup, shutdown, or load change that are also present in Ala Admin 

Code Rule 335-3-14-.03(1)(h)(1) because the emissions during such events can be 

reasonably avoided. The Petitioner noted that such events are part of normal source 

operation and that any special treatment of excess emissions during such events must be 

justified with a showing that the excess emissions could not be avoided through careful 

planning and design, and that bypassing controls in such events is necessary to prevent 

loss of life, personal injury, or severe property damage. 

Third, the Petitioner objected to the discretionary emergency exemption provision 

that also is present in Ala Admin Code Rule 335-3-14-.03(1)(h)(2), because the provision 

gives the state "sole authority to determine whether or not a violation has occurred." The 

 

113 Petition at 17-18. 

114 The EPA notes that the Petitioner also identified several additional pollutant-specific 

and source category-specific provisions in the Alabama SIP that it alleged are 

inconsistent with the CAA and the EPA's SSM Policy. However, the Petitioner did not 

request that the EPA address those SIP provisions in its remedy request, and thus the 

EPA is not addressing those provisions in this action. The EPA may elect to evaluate 

those provisions in a later action. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 166 of 322

Petitioner argued that this provision could be read to preclude enforcement by the EPA or 

citizens in the event that the state elects not to treat the event as a violation. Thus, in 

addition to creating an impermissible exemption for the excess emissions, the Petitioner 

argued that the provision is also inconsistent with the CAA and the EPA's SSM Policy

because it allows the state to make a unilateral decision that the excess emissions were 

not a violation and thus purports to bar enforcement for the excess emissions by the EPA 

and citizens. 

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitations must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. SIP provisions that create exemptions such that the excess 

emissions during startup, shutdown, load change, or emergencies are not violations of the 

applicable emission limitations are inconsistent with the fundamental requirements of the 

CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of 

such exemptions from the emission limitations in Ala Admin Code Rule 335-3-14-

.03(1)(h)(1) and Ala Admin Code Rule 335-3-14-.03(1)(h)(2) is thus a substantial 

inadequacy and renders these specific SIP provisions impermissible. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 167 of 322

In addition, the EPA agrees that startup, shutdown, and load change are all part of 

normal source operation and that such events are usually planned for and predictable, and 

thus emissions during such events are more controllable than those that might occur 

during an "emergency" or other form of malfunction. Unlike excess emissions in 

malfunctions, which are by definition presumed to be beyond the reasonable control of 

the source through proper design, operation, and maintenance, excess emissions that 

occur during startup, shutdown, or load change can be anticipated and steps can be taken 

to minimize them. The Petitioner, citing the 1983 SSM Guidance, argued that the EPA's 

SSM Policy indicates that there should be "a higher showing to escape enforcement" 

during such planned events. While such a higher showing may be relevant in the context 

of whether a state elects to exercise its enforcement discretion, it should not be germane 

to whether or not the excess emissions constitute a violation of the applicable emission 

limitations. The EPA notes that the CAA does not allow exemptions for excess emissions 

during startup, shutdown, or load change, just as it does not allow such exemptions 

during malfunctions. As discussed in section VII.A of this notice, states may elect to 

develop alternative emission limitations or other forms of enforceable control measures 

or techniques that apply during startup and shutdown, but exemptions for excess 

emissions during such periods are inconsistent with the fundamental requirements of the 

CAA. 

Finally, the EPA believes that both Ala Admin Code Rule 335-3-14-.03(1)(h)(1) 

and Ala Admin Code Rule 335-3-14-.03(1)(h)(2) are also impermissible as unbounded 

director's discretion provisions that make a state official the unilateral arbiter of whether 

the excess emissions in a given event constitute a violation. In the case of Ala Admin 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 168 of 322

Code Rule 335-3-14-.03(1)(h)(1), the provision authorizes a state official unilaterally to 

"[], in the Air Permit, exempt on a case by case basis any exceedances of emission limits 

which cannot reasonably be avoided, such as during periods of start-up, shut-down or 

load change." This provision vests the state official with the unilateral power to grant in a 

state air permit, which may not provide any additional public process at the state or 

federal level, an exemption from the otherwise applicable emission limitations without 

any bounds or parameters to the exercise of this discretion. By deciding that an 

exceedance of the emission limitation will not be a "violation," exercise of this discretion 

could preclude enforcement by the EPA or the public who may not agree that the 

emissions in question could not "reasonably be avoided." Most importantly, however, the 

provision authorizes the state official to create an exemption from the emission 

limitations, and such an exemption is impermissible in the first instance. Such a director's 

discretion provision undermines the SIP emission limitations and the emissions 

reductions they are intended to achieve and renders them less enforceable by EPA or 

through a citizen suit. As discussed in section VII.A of this notice, such provisions are 

substantially inadequate to meet CAA requirements. 

Similarly, the EPA believes that Ala Admin Code Rule 335-3-14-.03(1)(h)(2) 

authorizes a state official unilaterally to decide that a given event was an "emergency" 

and thus to create an exemption from the otherwise applicable emission limitations. In 

this case, the provision does contain some general parameters for the source to establish 

that there was an emergency (e.g., the source has to "identify" the cause of the 

emergency) but nevertheless empowers the state official to make a unilateral 

determination as to whether the event was an emergency. The provision thus vests the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 169 of 322

official with the power to grant an exemption from the otherwise applicable SIP emission 

limitations without any additional public process at the state or federal level, and with 

insufficient bounds or parameters applicable to the exercise of this discretion. Again, 

most significantly, this discretion authorizes the creation of an exemption on a case-bycase basis that is not permissible in the first instance. Thus, this provision also may 

undermine the SIP emission limitations, and the emissions reductions they are intended to 

achieve, and renders them less enforceable by the EPA or through a citizen suit. The EPA 

believes that the inclusion of an insufficiently bounded director's discretion provision in 

Ala Admin Code Rule 335-3-14-.03(1)(h)(1) and Ala Admin Code Rule 335-3-14-

.03(1)(h)(2) is thus a substantial inadequacy and renders these specific SIP provisions 

impermissible for this reason, in addition to the creation of impermissible exemptions. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to Ala Admin Code Rule 

335-3-14-.03(1)(h)(1) and Ala Admin Code Rule 335-3-14-.03(1)(h)(2). The EPA 

believes that both of these provisions allow for exemptions from the otherwise applicable 

emission limitations, and that such exemptions are inconsistent with the fundamental 

requirements of the CAA with respect to emission limitations in SIPs as required by

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, Ala Admin Code Rule 335-

3-14-.03(1)(h)(1) and Ala Admin Code Rule 335-3-14-.03(1)(h)(2) both allow for such 

exemptions through a state official's unilateral exercise of discretionary authority that is 

insufficiently bounded and includes no additional public process at the state or federal 

level, and such provisions are inconsistent with the fundamental requirements of the 

CAA with respect to SIPs and SIP revisions. Moreover, the discretion created by these 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 170 of 322

provisions allows case-by-case exemptions from emission limitations, when such 

exemptions are not permissible in the first instance. For these reasons, the EPA is 

proposing to find that Ala Admin Code Rule 335-3-14-.03(1)(h)(1) and Ala Admin Code 

Rule 335-3-14-.03(1)(h)(2) are substantially inadequate to meet CAA requirements and 

thus proposing to issue a SIP call with respect to these provisions. 

2. Florida 

a. Petitioner's Analysis

The Petitioner objected to three specific provisions in the Florida SIP that allow 

for generally applicable automatic exemptions for excess emissions during startup, 

shutdown, or malfunction (Fla. Admin. Code Ann Rule 62-201.700(1)), for fossil fuel 

steam generators during startup and shutdown (Fla. Admin. Code Ann Rule 62-

201.700(2)), and for such sources during boiler cleaning and load change (Fla. Admin. 

Code Ann Rule 62-201.700(3)).115,116 The Petitioner objected because all three of these 

provisions provide exemptions from the otherwise applicable SIP emission limitations, 

and such exemptions are inconsistent with the requirements of the CAA and the EPA's 

SSM Policy. The Petitioner argued that the CAA and the EPA's interpretation of the CAA 

in the SSM Policy require that all excess emissions be treated as violations. 

The Petitioner objected to all three of these provisions because, by stating that the 

excess emissions during the relevant events and time periods "are permitted," the state 

 

115 Petition at 30-31. 

116 The EPA notes that the Petitioner also identified several additional pollutant-specific 

and source category-specific provisions in the Florida SIP that it alleged are inconsistent 

with the CAA and the EPA's SSM Policy. However, the Petitioner did not request that the 

EPA address those SIP provisions in its remedy request, and thus the EPA is not 

addressing those provisions in this action. The EPA may elect to evaluate those 

provisions in a later action. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 171 of 322

has defined these excess emissions as not violations, thereby precluding enforcement by 

the EPA or citizens for the excess emissions that would otherwise be violations. The 

Petitioner also argued that the provision creating exemptions for excess emissions during 

boiler cleaning and load change in Fla. Admin. Code Ann Rule 62-201.700(3) is 

impermissible specifically because it creates an exemption for excess emissions during 

normal source operation that "are not eligible for any relief under EPA guidance." 

After objecting to the three provisions that create the exemptions, the Petitioner 

noted that the related provision in Fla. Admin. Code Ann Rule 62-201.700(4) reduces the 

potential scope of the exemptions in the other three provisions if the excess emissions at 

issue are caused entirely or in part by things such as poor maintenance but that it does not 

eliminate the impermissible exemptions. Moreover, the Petitioner asserted that none of 

the four provisions provides any "procedure by which the factual premises of any of these 

subsections are to be proven." 

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable emission limitations. In accordance with the requirements of CAA section 

110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the 

definition of "emission limitations" in CAA section 302(k), such emission limitations 

must be continuous. Thus, any excess emissions above the level of the applicable SIP 

emission limitations must be considered violations of such limitations, whether or not the 

state elects to exercise its enforcement discretion. SIP provisions that create exemptions 

such that the excess emissions during startup, shutdown, malfunction, boiler cleaning, or 

load change are not violations are inconsistent with the fundamental requirements of the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 172 of 322

CAA with respect to emission limitations in SIPs. The three provisions identified by the 

Petitioner explicitly state that the excess emissions "shall be permitted" under certain 

circumstances and thus provide that the resulting excess emissions will not be violations 

contrary to the CAA, as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). The 

EPA believes that the inclusion of such exemptions from emission limitations in Fla. 

Admin. Code Ann Rule 62-201.700(1), Fla. Admin. Code Ann Rule 62-201.700(2) and 

Fla. Admin. Code Ann Rule 62-201.700(3), is thus a substantial inadequacy and renders 

these specific SIP provisions impermissible. 

The EPA notes that these exemptions are impermissible even though the state has 

imposed some factual and temporal limitations on their potential scope. For example, in 

Fla. Admin. Code Ann Rule 62-201.700(1), the state has specified that the excess 

emissions from startup, shutdown, and malfunction events "shall be permitted" (i.e., 

allowed and thus not treated as violations) provided: "(1) best operational practices to 

minimize emissions are adhered to and (2) the duration of excess emissions shall be 

minimized but in no case exceed two hours in any 24 hour period unless specifically 

authorized by the Department for longer duration." Similarly, in Fla. Admin. Code Ann 

Rule 62-201.700(2) with respect to startup and shutdown from certain sources, the state 

has conditioned the exemption "provided that best operational practices to minimize 

emissions are adhered to and the duration of excess emissions shall be minimized." In 

Fla. Admin. Code Ann Rule 62-201.700(3), the state has imposed much more specific 

limits on the duration of the events and some additional limitations on the excess 

emissions in the form of specified opacity limits that apply during such events. Although 

these extra limitations on the scope of the exemptions are helpful features, they
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 173 of 322

nevertheless constitute a variance at a state official's discretion from the otherwise 

applicable emissions limitations, and the core problem remains that each of the three 

provisions provides impermissible exemptions from the emission limitations by defining 

the excess emissions as "permitted" and thus not violations. The CAA does, as discussed 

in section VII.A of this notice, allow states to develop alternative emission limitations or 

other forms of enforceable control measures or techniques that apply during startup or 

shutdown. However, the Florida SIP provisions do not appear to comply with the Act's 

requirements as interpreted in the EPA's SSM Policy because, for instance, they do not 

apply only to "specific, narrowly-defined source categories using specific control 

strategies."117

With respect to the Petitioner's concern that these exemptions preclude 

enforcement by the EPA or citizens, the EPA agrees that this is one of the critical reasons 

why such provisions are impermissible under the CAA. By having SIP provisions that 

define what would otherwise be violations of the applicable emission limitations as nonviolations, the state has effectively negated the ability of the EPA or the public to enforce 

against those violations. 

In addition, the EPA agrees that the limiting provision of Fla. Admin. Code Ann 

Rule 62-201.700(4) that curtails the exemptions in the prior provisions if the excess 

emissions are caused "entirely or in part" by factors within the source's control such as 

"poor maintenance" does not negate the underlying problem of providing exemptions for 

the excess emissions in the first instance. The EPA acknowledges that this provision 

would serve to prevent sources that fail to maintain or operate correctly or otherwise to 

 

117 1999 SSM Guidance Attachment at 4-5. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 174 of 322

take action reasonably to prevent excess emissions during SSM events from getting the 

benefits of the exemption. However, the EPA recommends that these are the types of 

considerations that should be relevant either in the state's exercise of enforcement 

discretion for violations, in the state's adoption of a SIP provision concerning that 

exercise of enforcement discretion by the state, or by an appropriately drawn affirmative 

defense SIP provision for excess emissions in the case of malfunctions. 

Finally, the Petitioner expressed concern that the four SIP provisions at issue "do 

not specify the procedure by which the factual premises are to be proven." Were these 

provisions authorizing a state official to make discretionary decisions as to whether or not 

a given event qualified for the (impermissible) exemption, there could be an additional 

concern that these provisions included a director's discretion problem as well. However, 

the EPA believes that these regulations are directly enforceable by the state, the EPA, or 

members of the public in the appropriate forums, and thus the "procedure" for proving 

the violation would be the normal process in such forums. The fact that the state has 

established factual requirements that would need to be evaluated in order to prove a 

violation of the applicable emission limitations is not itself inconsistent with CAA 

requirements. The EPA believes that providing requisite factual evidence to establish a 

violation in an enforcement proceeding is entirely appropriate. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to Fla. Admin. Code Ann 

Rule 62-201.700(1), Fla. Admin. Code Ann Rule 62-201.700(2), Fla. Admin. Code Ann 

Rule 62-201.700(3), and Fla. Admin. Code Ann Rule 62-201.700(4). The EPA believes 

that each of these provisions allows for exemptions from the otherwise applicable 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 175 of 322

emission limitations, and that such exemptions are inconsistent with the fundamental 

requirements of the CAA with respect to emission limitations in SIPs as required by

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating these 

impermissible exemptions, the state has defined violations in way that would interfere 

with effective enforcement by the EPA and citizens for excess emissions during these 

events as provided in CAA sections 113 and 304. For these reasons, the EPA is proposing 

to find that these provisions are substantially inadequate to meet CAA requirements and 

thus proposing to issue a SIP call with respect to Fla. Admin. Code Ann Rule 62-

201.700(1), Fla. Admin. Code Ann Rule 62-201.700(2), Fla. Admin. Code Ann Rule 62-

201.700(3), and Fla. Admin. Code Ann Rule 62-201.700(4). 

3. Georgia 

a. Petitioner's Analysis

The Petitioner objected to a provision in the Georgia SIP that provides for 

exemptions for excess emissions during startup, shutdown, or malfunctions under certain 

circumstances (Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7)).118 The Petitioner 

acknowledged that this provision of the Georgia SIP includes some conditions for when 

sources may be entitled to seek the exemption under state law, such as when the source 

has used "best operational practices" to minimize emissions during the SSM event. 

First, the Petitioner objected because the provision creates an exemption from the 

applicable emission limitations by providing that the excess emissions "shall be allowed" 

subject to certain conditions, whereas the CAA and the EPA's interpretation of the CAA 

in the SSM Policy prohibit any such exemptions. The Petitioner noted that all excess 

 

118 Petition at 32. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 176 of 322

emissions are required to be treated as violations of the applicable emission limitations, 

even if they would qualify for some other special consideration through other means such 

as enforcement discretion. 

Second, the Petitioner argued that although the provision provides some 

"substantive criteria," the provision does not meet the criteria the EPA recommends for 

an affirmative defense provision consistent with the requirements of the CAA in the 

EPA's SSM Policy. Third, the Petitioner asserted that the provision is not a permissible 

"enforcement discretion" provision applicable only to state personnel, because it "is 

susceptible to interpretation as an enforcement exemption, precluding EPA and citizen 

enforcement as well as state enforcement." 

b. The EPA's Evaluation

At the outset, the EPA notes that the Petitioner failed to include any discussion of 

the extensive prior litigation and administrative proceedings concerning this specific 

provision of the Georgia SIP. Nearly 10 years ago, citizen suit plaintiffs including the 

Petitioner sought to bring an enforcement action against a source for self-reported 

exceedances of emission limitations in the source's operating permit, and the source 

asserted that those exceedances were not "violations" through application of a permit 

provision that mirrored the underlying SIP provision in Ga. Comp. R. & Regs. 391-3-1-

.02(2)(a)(7).119 In that case, the plaintiffs argued that the provision at issue was an 

"enforcement discretion" provision applicable to state personnel only and thus that it was 

not relevant in the event of enforcement actions by other parties. The District Court 

agreed and held that the provision was merely an enforcement discretion provision 

 

119 See, Sierra Club, et al. v Georgia Power Co., 365 F. Supp 1297 (N.D. Ga. 2004). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 177 of 322

applicable to the state and that it provided no affirmative defense in the enforcement 

action, and thus the court ruled in favor of the plaintiffs on this issue.120

On appeal, the Court of Appeals examined the same operating permit language 

and underlying SIP provision and came to a different conclusion.121 The Court of Appeals 

concluded that the provision does provide an affirmative defense and is not an 

enforcement discretion provision. Moreover, the Court noted that even if the provision is 

not consistent with the EPA's guidance on permissible affirmative defense provisions in 

SIPs (e.g., because it creates exemptions for exceedances and purports to allow a 

complete bar to any liability, not just relief from monetary penalties), the EPA had not 

taken action through rulemaking to rectify that discrepancy. Because the EPA had not 

called upon the state to revise the SIP to bring it into compliance with the EPA's current 

interpretation of the CAA embodied in the 1999 SSM Guidance, the Court held that the 

exceedances of the applicable emission limitations were not violations and thus ruled 

against the plaintiffs. 

Contemporaneously with this litigation, the Petitioner had also filed a May 23, 

2005 petition for rulemaking, requesting that the EPA require the state to revise its SIP 

"to correct a significant ambiguity" concerning the excess emissions from SSM events.122

On July 18, 2007, the EPA denied that petition.123 As a basis for this denial, the EPA 

 

120 Id. at 1304. The court also made a series of findings to illustrate that the permit 

provision was not consistent with the EPA's interpretation of the CAA requirements 

concerning excess emissions during SSM events embodied in the 1999 SSM Guidance. 

121 See, Sierra Club, et al. v. Georgia Power Co., 443 F.3d 1346 (11th Cir. 2006). 

122 The petition was filed by Richard M. Watson of the Georgia Center for Law in the 

Public Interest on behalf of the Georgia Chapter of the Sierra Club. 

123 See, Letter from Stephen E. Johnson, Administrator, to Georgia Chapter of the Sierra 

Club, dated July 18, 2007. A copy of this letter is in the docket for this action. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 178 of 322

reasoned that the opinion of the Court of Appeals had rendered the petition moot as to the 

issues raised therein. Specifically, the EPA stated that the Court's decision that the 

existing provision did not create an "automatic exemption" and did constitute an 

"affirmative defense" resolved any "ambiguity" about the meaning and application of Ga. 

Comp. R. & Regs. 391-3-1-.02(2)(a)(7). 

At this juncture, the EPA believes that the extensive proceedings concerning Ga. 

Comp. R. & Regs. 391-3-1-.02(2)(a)(7) in which plaintiffs, defendants, courts, and both 

state and federal agencies examined the same provision and came to different conclusions 

concerning its meaning illustrates the need to examine this SIP provision again. In 

particular, the EPA concludes that the provision warrants further evaluation on the merits, 

because the Petition requests that the EPA consider more specific allegations about 

deficiencies in the provision than did the 2005 petition. As the 11th Circuit Court of 

Appeals suggested, the EPA agrees that a formal notice-and-comment rulemaking though 

CAA section 110(k)(5) is a good mechanism through which to evaluate whether or not 

Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) meets the substantive requirements of the 

CAA. Accordingly, the EPA is reevaluating the provision on the merits.124

The first concern with this provision is that it does create exemptions from the 

applicable emission limitations. The provision explicitly states that the "excess emissions 

resulting from startup, shutdown, malfunction of any source which occur though ordinary

diligence is employed shall be allowed," i.e., are exempt and not subject to enforcement 

 

124 The EPA notes that it is not bound to follow a prior incorrect interpretation of its own 

policy, nor is it precluded from changing its policy interpretations. See, e.g., Luminant 

Generation Co. v. EPA, 699 F.3d 427 (5th Cir. 2012), and U.S. Supreme Court precedent 

cited therein for these propositions. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 179 of 322

for either monetary penalties or injunctive relief. The exemption for these excess 

emissions is conditioned upon several criteria relevant to minimizing emissions during 

the startup, shutdown, or malfunction event, which criteria are helpful and are structured 

as a form of affirmative defense. Even if Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) 

could otherwise qualify as an affirmative defense provision, however, the EPA's 

interpretation of the CAA is that such affirmative defenses can only shield the source 

from monetary penalties and cannot be a bar to injunctive relief. An affirmative defense 

provision that purports to bar any enforcement action for violations of emission 

limitations is inconsistent with the requirements of CAA sections 113 and 304. 

The EPA's second concern with Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is 

that while the provision appears to create an affirmative defense, it does so with 

conditions that are not consistent with the full range of criteria that the EPA recommends 

in the SSM Policy. The EPA acknowledges that the SSM Policy is only guidance 

concerning what types of SIP provisions could be consistent with the requirements of the 

CAA. Nonetheless, through this rulemaking, the EPA is proposing to determine that Ga. 

Comp. R. & Regs. 391-3-1-.02(2)(a)(7) does not include criteria that are sufficiently 

robust to qualify as an acceptable affirmative defense provision. In particular, the 

provision does not limit the type of event that qualifies as a malfunction to those that are 

entirely beyond the control of the source, that were not reasonably foreseeable and 

avoidable, and that were not part of a recurring pattern indicative of inadequate design, 

operation, or maintenance. While the EPA continues to believe that affirmative defense 

provisions applying to malfunctions can be consistent with the CAA as long as the 

criteria set forth in the SSM Policy are carefully adhered to, as explained in more detail in 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 180 of 322

sections IV.B and VII.B of this notice, the EPA believes that the criteria in Ga. Comp. R. 

& Regs. 391-3-1-.02(2)(a)(7) should be augmented to assure that the affirmative defense 

is available only in appropriately narrow circumstances. 

The EPA's third concern with Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is that 

even if the provision were otherwise construed as an affirmative defense, it extends not 

just to malfunctions but also to startup and shutdown events. As explained in sections

IV.B and VII.C of this notice, the EPA interprets the CAA to allow affirmative defense 

provisions applicable to malfunctions but not to other normal modes of source operation, 

including startup and shutdown. Thus, the provision is not drawn to assure that the 

affirmative defense is available only in appropriately narrow circumstances, as required 

by the EPA's interpretation of CAA requirements. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to Ga. Comp. R. & Regs. 

391-3-1-.02(2)(a)(7). The EPA believes that this provision allows for exemptions from 

the otherwise applicable emission limitations, and that such outright exemptions for 

excess emissions are inconsistent with the fundamental requirements of the CAA with 

respect to emission limitations in SIPs. Such a provision is inconsistent with the 

requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). 

In addition, Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is not a permissible 

affirmative defense provision consistent with the requirements of the CAA and the EPA's 

recommendations for such provisions in the EPA's SSM Policy. By creating a bar to 

enforcement that applies not just to monetary penalties but also to injunctive relief, this 

provision is inconsistent with the requirements of CAA sections 113 and 304. By not 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 181 of 322

including sufficient criteria to assure that sources seeking to raise the affirmative defense 

have in fact been properly designed, maintained, and operated, and to assure that sources 

have taken all appropriate steps to minimize excess emissions, the provision also fails to 

be sufficiently narrowly drawn to justify shielding from monetary penalties for violations. 

Moreover, Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) currently applies not only to 

malfunctions but also to startup and shutdown events, contrary to the EPA's interpretation 

of the CAA. Thus, this provision is not appropriate as an affirmative defense provision 

because it is inconsistent with fundamental requirements of the CAA as interpreted in the 

EPA's SSM Policy. For these reasons, the EPA is proposing to find that Ga. Comp. R. & 

Regs. 391-3-1-.02(2)(a)(7) is substantially inadequate to meet CAA requirements and 

thus proposing to issue a SIP call with respect to this provision. 

4. Kentucky 

a. Petitioner's Analysis

The Petitioner objected to a generally applicable provision that allows 

discretionary exemptions from otherwise applicable SIP emission limitations in 

Kentucky's SIP (401 KAR 50:055 §1(1)).125,126 The provision provides that "[e]missions 

which, due to shutdown or malfunctions, temporarily exceed the standard . . . shall be 

deemed in violation of such standards unless the requirements of this section are satisfied 

and the determinations specified in subsection (4) . . . are made." The provision requires 

 

125 Petition at 39-40. 

126 The EPA notes that the Petitioner also identified several additional pollutant-specific 

and source category-specific provisions in Kentucky's SIP that it alleged are inconsistent 

with the CAA and the EPA's SSM Policy. However, the Petitioner did not request that the 

EPA address those SIP provisions in its remedy request, and thus the EPA is not 

addressing those provisions in this action. The EPA may elect to evaluate those 

provisions in a later action. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 182 of 322

sources to notify the director that such violations are going to or have occurred. The 

provision then provides that "[a] source shall be relieved from compliance with the 

standards . . . if the director determines" that the source has met a number of enumerated 

criteria. 

The Petitioner argued that this provision could provide an exemption from the 

otherwise applicable SIP emission limitations, and such an exemption is impermissible 

under the CAA because the statute and the EPA's interpretation of the CAA in the SSM 

Policy require that all such excess emissions be treated as violations. Moreover, the 

Petitioner objected to this discretionary exemption because the director's determination 

that the source has met the specified criteria could be interpreted to excuse excess 

emissions during such time period and could thus be read to preclude enforcement by the 

EPA or citizens in the event that the director elects not to treat the event as a violation. 

Thus, in addition to creating an impermissible exemption for the excess emissions, the 

Petitioner argued, the provision is also inconsistent with the CAA as interpreted in the 

EPA's SSM Policy because it allows the director to make a unilateral decision that the 

excess emissions were not a violation and thus could bar enforcement for the excess 

emissions by the EPA and citizens. 

The Petitioner noted that the criteria that sources must demonstrate to the director 

in order to qualify for the exemption "resemble the criteria that are supposed to guide a 

state's enforcement discretion for malfunctions," but that if the provision is not removed 

from the SIP, it "must stipulate that all excess emissions are violations and preserve the 

authority of EPA and citizens to enforce the SIP standards and limitations." Thus, the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 183 of 322

Petitioner viewed this provision as either an impermissible discretionary exemption 

mechanism or an impermissible enforcement discretion provision. 

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitation must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. SIP provisions that create exemptions such that the excess 

emissions during startup, shutdown, or malfunctions are not violations of the applicable 

emission limitations are inconsistent with the fundamental requirements of the CAA with 

respect to emission limitations in SIPs. The EPA believes that the inclusion of such an 

exemption from the emission limitations in 401 KAR 50:055 §1(1) is thus a substantial 

inadequacy and renders this specific SIP provision impermissible. 

The EPA believes that 401 KAR 50:055 §1(1) is impermissible as an unbounded 

director's discretion provision that makes a state official the unilateral arbiter of whether 

the excess emissions in a given event constitute a violation. In the case of 401 KAR 

50:055 §1(1), the provision authorizes the state official to make a determination that the 

source has met the specified criteria, and such a determination could be interpreted to 

excuse excess emissions during the event and could thus be read to preclude enforcement 

by the EPA or through a citizen suit. In addition, the provision vests a state official with 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 184 of 322

the unilateral power to grant an exemption from the otherwise applicable SIP emission 

limitation, without any additional public process at the state or federal level. Most 

importantly, however, the provision authorizes a state official to create an exemption 

from the emission limitation, and such an exemption is impermissible in the first 

instance. Such a director's discretion provision undermines the SIP emission limitations, 

and the emissions reductions they are intended to achieve, and renders them less 

enforceable by the EPA or through a citizen suit. The EPA believes that the inclusion of 

an insufficiently bounded director's discretion provision in 401 KAR 50:055 §1(1) is thus 

a substantial inadequacy and renders this specific SIP provision impermissible for this 

reason, in addition to the creation of an impermissible exemption. 

The EPA also notes that after the submission of the Petition, there has been a 

subsequent regulatory action that touched upon this SIP provision tangentially. In 

connection with a redesignation of the Kentucky portion of the tri-state CincinnatiHamilton area for the 1997 PM2.5 NAAQS, the state submitted an interpretive letter to the 

EPA explaining the state's reading of 401 KAR 50:055 §1(1).127 In this November 4, 

2011 letter, the Kentucky Division of Air Quality (KDAQ) stated that it has "never 

formally taken the position that excess emissions under the regulations are not violations" 

and that a determination by KDAQ "does not limit" the authority of the EPA and citizens 

to take enforcement action.128 Based on the state's interpretation of 401 KAR 50:055 

§1(1), the EPA at that time concluded that the provision could be construed not to bar 

 

127 See, "Approval and Promulgation of Implementation Plans and Designations of Areas 

for Air Quality Planning Purposes; Kentucky; Redesignation of the Kentucky Portion of 

the Cincinnati-Hamilton, OH-KY-IN 1997 Annual Fine Particulate Matter Nonattainment 

Area to Attainment," 76 FR 77903 (Dec. 15, 2011). 

128 A copy of this letter can be found in the docket for this rulemaking. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 185 of 322

enforcement by the EPA or through a citizen suit if the state elects not to pursue 

enforcement; i.e., it could be construed as an enforcement discretion provision applicable 

to state personnel. In the context of acting upon the redesignation request under CAA 

section 107(d)(3), this clarification from the state was sufficient to address the concern 

raised in comments on that action. Nevertheless, the EPA noted in the redesignation 

action that it would evaluate 401 KAR 50:055 §1(1) as part of its consideration of issues 

raised by the Petition. 

At this juncture, the EPA believes that the difference of views about the correct 

reading of 401 KAR 50:055 §1(1) illustrates the need to examine this SIP provision 

again. The EPA appreciates KDAQ's clarification of its reading of the provision in the 

November 4, 2011, letter and the EPA considers that interpretation sufficient for purposes 

of the redesignation action. However, in the course of reevaluating this provision in light 

of the issues raised in the Petition, the EPA believes that the provision contains 

regulatory language that is potentially contradictory and requires formal revision to 

eliminate significant ambiguities. For example, subsection 1 of the provision states that: 

"[e]missions which, due to shutdown or malfunctions, temporarily exceed the standard . . 

. shall be deemed in violation of such standards unless the requirements of this section are 

satisfied." In subsection 4, the provision states that "a source shall be relieved from 

compliance with the standards . . . if the director determines, upon a showing by the 

owner or operator of the source, that" certain conditions are met. KDAQ has indicated 

that it reads these provisions not to bar enforcement by the EPA or through a citizen suit

in the event that the state does not pursue enforcement, but the EPA believes that the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 186 of 322

provision is sufficiently ambiguous on this point that a revision is necessary to ensure that 

outcome in the event of an enforcement action. 

As discussed in section VI.B of this notice, the EPA believes that in some 

instances it is appropriate to clarify provisions of a SIP through the use of interpretive 

letters. However, in some cases, there may be areas of regulatory ambiguity in a SIP's 

provisions that are sufficiently significant for which resolution is both appropriate and 

necessary. Because the text of Kentucky's SIP provision is not clearly phrased in terms of 

the state's exercise of enforcement discretion and could be interpreted to allow 

discretionary exemptions from the otherwise applicable SIP emission limitations or as an 

affirmative defense provision inconsistent with the criteria recommended in the EPA's 

SSM Policy, the EPA believes that the provision is substantially inadequate to meet CAA 

requirements. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to 401 KAR 50:055 §1(1). 

The EPA believes that this provision requires clarification to ensure that it meets CAA 

requirements. The current provision could be read to allow for exemptions from the 

otherwise applicable SIP emission limitations, and such exemptions are inconsistent with 

the fundamental requirements of the CAA with respect to emission limitations in SIPs in 

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, 401 KAR 50:055 §1(1) 

could be read to allow exemptions through a state official's unilateral exercise of 

discretionary authority that is insufficiently bounded and includes no additional public 

process at the state or federal level, and such provisions are inconsistent with the 

fundamental requirements of the CAA with respect to SIPs and SIP revisions. Moreover, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 187 of 322

the provision could be read to create discretion to allow case-by-case exemptions from 

emission limitations when such exemptions are not permissible in the first instance. In

light of the potential conflicts between the provision and the differing interpretations that 

parties or a court might give the provision in an enforcement action, the EPA is proposing 

to find that 401 KAR 50:055 §1(1) is substantially inadequate to meet CAA requirements 

and thus proposing to issue a SIP call with respect to this provision. 

5. Kentucky: Jefferson County

a. Petitioner's Analysis

First, the Petitioner objected to a generally applicable provision in the Jefferson 

County Air Regulations 1.07 because it provides for discretionary exemptions from 

compliance with emission limitations during startup, shutdown, and malfunction.129,130

The provision states that "[e]missions due to startup, shutdown, malfunction, or 

emergency, that temporarily exceed the standards . . . shall be deemed in violation of 

those standards unless, based upon a showing by the owner or operator of the source and 

an affirmative determination by the District, the applicable requirements of this 

regulation are satisfied." The provision requires different demonstrations for exemptions 

for excess emissions during startup and shutdown (Regulation 1.07 § 3), malfunction 

(Regulation 1.07 § 4 and § 7), and emergency (Regulation 1.07 § 5 and § 7). 

 

129 The Petitioner noted that this regulation was approved into Kentucky's SIP in 

"Approval and Promulgation of Air Quality Implementation Plans; Kentucky; Approval 

of Revisions to State Implementation Plan; Revised Format for Materials Being 

Incorporated by Reference for Jefferson County, Kentucky," 66 FR 53503 at 53660 (Oct. 

23, 2001). 

130 Petition at 40-42. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 188 of 322

The Petitioner argued that this provision could provide exemptions from the 

otherwise applicable SIP emission limitations, and that such exemptions are 

impermissible under the CAA because the statute and the EPA's interpretation of the 

CAA in the SSM Policy require that all excess emissions be treated as violations. The 

Petitioner objected to this provision as allowing discretionary exemptions, because a local 

official's determination that the source has met the specified criteria could be interpreted 

to excuse excess emissions during such events and could thus be read to preclude 

enforcement by the EPA or citizens if the district elects not to treat the event as a 

violation. 

Second, the Petitioner objected to the affirmative defense for emergencies in 

Jefferson County Air Regulations 1.07. The Petitioner noted that the SIP provision 

"mirrors the language in 40 C.F.R. § 70.6(g)" in the EPA's own title V regulations. Thus, 

the Petitioner argued that the provision should not be included in the SIP because it is 

modeled on the EPA's own title V regulations, and such regulations do not belong in the 

SIP. The Petitioner also argued that even if the provision were appropriate as a SIP 

provision, it is deficient because it is not a "true affirmative defense." On the latter point 

the Petitioner argued that a "true affirmative defense" is a defense to be asserted by the 

source in the context of a judicial or administrative enforcement proceeding. The 

Petitioner opined that the emergency affirmative defense in Jefferson County Air 

Regulations 1.07 "appears to allow the District to decide whether the defense applies."

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 189 of 322

government official's discretion. In accordance with the requirements of CAA section 

110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the 

definition of "emission limitations" in CAA section 302(k), such emission limitations 

must be continuous. Thus, any excess emissions above the level of the applicable 

emission limitation must be considered violations, whether or not the state elects to 

exercise its enforcement discretion. SIP provisions that create exemptions such that the 

excess emissions during startup, shutdown, load change, or emergencies are not 

violations of the applicable emission limitations are inconsistent with the fundamental 

requirements of the CAA with respect to emission limitations in SIPs. The EPA believes 

that the inclusion of such an exemption from the emission limitations in Jefferson County 

Air Regulations 1.07 is thus a substantial inadequacy and renders this specific SIP 

provision impermissible. 

The EPA believes that Regulation 1.07 is also impermissible as an insufficiently

bounded director's discretion provision that makes a local official the unilateral arbiter of 

whether the excess emissions in a given event constitute a violation. In the case of 

Regulation 1.07, the provision authorizes local officials to make a determination that the 

source has met the specified criteria for each type of event—startup and shutdown 

(Regulation 1.07 § 3), malfunction (Regulation 1.07 § 4), emergency (Regulation 1.07 § 

5), and extended malfunction or emergency (Regulation 1.07 § 7). The local official's 

"affirmative determination" that such requirements have been met has the effect of 

excusing the excess emissions (Regulation 1.07 § 2.1). This determination could be 

interpreted to preclude enforcement by the EPA or through a citizen suit. In addition, the 

provision vests the local official with the unilateral power to grant an exemption from the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 190 of 322

otherwise applicable SIP emission limitations, without any additional public process at 

the state or federal level. Most importantly, however, the provision authorizes the local 

official to create an exemption from the emission limitation, and such an exemption is 

impermissible in the first instance. Such a director's discretion provision undermines the 

emission limitations, and the emissions reductions they are intended to achieve, and 

renders them less enforceable by the EPA or through a citizen suit. The EPA believes that 

the inclusion of an insufficiently bounded director's discretion provision in Regulation 

1.07 is thus a substantial inadequacy and renders this specific SIP provision 

impermissible for this reason, in addition to the creation of an impermissible exemption. 

The EPA also agrees that Regulation 1.07 provides an impermissible exemption 

for excess emissions that occur during "emergencies." The provision uses language that is 

borrowed from the EPA's title V regulations (Regulation 1.07 § 5) but that is not 

appropriate for a SIP provision (see section VII.D of this notice). In addition, because 

Regulation 1.07 § 2.1 provides that the district may make a determination of whether 

"applicable requirements" of the regulation are "satisfied," and the affirmative defense for 

emergencies is defined as one such "applicable requirement," the structure of Regulation 

1.07 could be read as providing the district with the unilateral discretion to decide that the 

source has met the conditions for the affirmative defense. The EPA agrees with the 

Petitioner that affirmative defenses are only permitted in the context of an enforcement 

proceeding and cannot be granted unilaterally by a state agency, because this would have 

the effect of precluding the EPA or the public from taking enforcement action. 

Regulation 1.07 also does not explicitly limit the affirmative defense for 

emergency events to civil penalties. Although the EPA believes that narrowly drawn 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 191 of 322

affirmative defenses are permitted under the CAA for malfunction events (see sections 

IV.B and VII.B of this notice), the EPA's interpretation of the CAA is that affirmative 

defenses can only shield the source from monetary penalties and cannot be a bar to 

injunctive relief. An affirmative defense provision that purports to bar any enforcement 

action for injunctive relief for violations of emission limitations is inconsistent with the 

requirements of CAA sections 113 and 304. In addition, the provision does not contain 

elements for establishing the affirmative defense consistent with all of the recommended 

criteria in the EPA's SSM Policy. The EPA acknowledges that the SSM Policy is only

guidance concerning what types of SIP provisions could be consistent with the 

requirements of the CAA. Nonetheless, through this rulemaking, the EPA is proposing to 

determine that Regulation 1.07 does not include criteria that are sufficiently robust to 

qualify as an acceptable affirmative defense provision for purposes of SIP requirements. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to Jefferson County Air 

Regulation 1.07.

131 The EPA believes that this provision allows for exemptions from the 

otherwise applicable SIP emission limitations, and that such exemptions are inconsistent 

with the fundamental requirements of the CAA with respect to emission limitations in 

SIPs in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, Regulation 1.07 

allows for such exemptions through a local official's unilateral exercise of discretionary

authority that is insufficiently bounded and includes no additional public process at the 

 

131 The EPA notes that Kentucky has recently made a SIP submission that includes 

revisions to the portion of the SIP applicable to Jefferson County that would amend 

Regulation 1.07. In this action, the EPA is only evaluating Regulation 1.07 as currently

approved into the SIP. The EPA is not evaluating the more recent SIP submission as part 

of this action. The EPA will address the SIP submission in a later action. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 192 of 322

state or federal level, and such provisions are inconsistent with the fundamental 

requirements of the CAA with respect to SIPs and SIP revisions. Moreover, the discretion 

created by these provisions allows case-by-case exemptions from emission limitations,

when such exemptions are not permissible in the first instance. For these reasons, the 

EPA is proposing to find that Regulation 1.07 is substantially inadequate to meet CAA 

requirements and thus proposing to issue a SIP call with respect to this provision. 

The EPA also proposes to grant the Petition because Regulation 1.07 contains an 

impermissible exemption for excess emissions during emergency events, conditioned 

upon an affirmative defense provision that is inconsistent with the criteria recommended 

in the EPA's SSM Policy. Regulation 1.07 can be read to authorize the district to grant an 

exemption under § 2.1 and § 5, and such an interpretation could preclude the EPA and the 

public from bringing an enforcement action. Furthermore, the affirmative defense 

provision is impermissible because it does not explicitly limit the defense to monetary

penalties, and it does not include sufficient criteria to assure that sources seeking to raise 

the affirmative defense have in fact been properly designed, maintained, and operated, 

and to assure that sources have taken all appropriate steps to minimize excess emissions. 

The provision therefore also fails to be sufficiently narrowly drawn to justify shielding 

from monetary penalties for violations. For these reasons, the EPA is proposing to find 

that Regulation 1.07 is substantially inadequate to meet CAA requirements and proposes 

to issue a SIP call with respect to this provision. 

6. Mississippi 

a. Petitioner's Analysis
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 193 of 322

The Petitioner objected to two generally applicable provisions in the Mississippi 

SIP that allow for affirmative defenses for violations of otherwise applicable SIP 

emission limitations during periods of upset, i.e., malfunctions (11-1-2 Miss. Code R. § 

10.1) and unavoidable maintenance (11-1-2 Miss. Code R. § 10.3).132 First, the Petitioner 

objected to both of these provisions based on its assertion that the CAA allows no 

affirmative defense provisions in SIPs. Second, the Petitioner asserted that even if 

affirmative defense provisions were permissible under the CAA, the affirmative defenses 

in these provisions "fall far short of the EPA policy." Specifically, the Petitioner argued 

that the EPA's guidance for affirmative defenses recommends that they "are not 

appropriate where a single source or a small group of sources has the potential to cause 

an exceedance of the NAAQS or PSD increments,"133 and Mississippi's provisions do not 

contain a restriction to address this point. Further, the Petitioner argued that the 

affirmative defenses in Mississippi's SIP are not limited to actions seeking civil penalties 

and that they fail to meet other criteria "that EPA requires for acceptable defense 

provisions."134 Finally, the Petitioner argued that the CAA and the EPA's SSM Policy

interpreting it do not allow affirmative defenses for excess emissions during maintenance 

events under any circumstances. 

The Petitioner also objected to a generally applicable provision that provides an 

exemption from otherwise applicable SIP emission limitations during startup and 

shutdown (11-1-2 Miss. Code R. § 10.2).135 Within that provision, 11-1-2 Miss. Code R. 

 

132 Petition at 47-49.

133 Petition at 48.

134 Petition at 47-48.

135 Petition at 47-49.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 194 of 322

§ 10.2(a)(2) specifies that emission limitations apply during startup and shutdown except 

"when a startup or shutdown is infrequent, the duration of the excess emissions is brief in 

each event, and the design of the source is such that the period of excess emissions 

cannot be avoided without causing damage to the equipment or persons." The Petitioner 

argued that such an exemption is inconsistent with the requirements of the CAA and the 

EPA's SSM Policy. The Petitioner argued that the CAA and the EPA's interpretation of 

the CAA in the SSM Policy require that all such excess emissions be treated as 

violations. 

b. The EPA's Evaluation

The EPA disagrees with the Petitioner's contention that no affirmative defense 

provisions are permissible in SIPs under the CAA. As explained in more detail in section 

IV of this notice, the EPA interprets the CAA to allow affirmative defense provisions for 

malfunctions. So long as these provisions are narrowly drawn and consistent with the 

CAA, as recommended in the EPA's guidance for affirmative defense provisions in SIPs, 

the EPA believes that states may elect to have affirmative defense provisions for 

malfunctions. 

The EPA agrees, however, that the affirmative defense contained in 11-1-2 Miss. 

Code R. § 10.1 for upsets is not an acceptable affirmative defense provision under the 

CAA as interpreted in the EPA's SSM Policy. Section 10.1 provides that "[t]he 

occurrence of an upset ... constitutes an affirmative defense to an enforcement action 

brought for noncompliance with emission standards," conditioned upon the source 

meeting a series of criteria. Although the EPA believes that narrowly drawn affirmative 

defenses are permitted under the Act for malfunction events (i.e., upsets) (see section 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 195 of 322

VII.B of this notice), the EPA's interpretation of the CAA is that an affirmative defense 

can only shield the source from monetary penalties and cannot be a bar to injunctive 

relief. The provisions of 11-1-2 Miss. Code R. § 10.1 applicable to upsets appears to 

create a bar not just to monetary penalties but also to injunctive relief. An affirmative 

defense provision that purports to bar any enforcement action for injunctive relief for 

violations of emission limitations is inconsistent with the requirements of CAA sections 

113 and 204. 

In addition, the EPA agrees that 11-1-2 Miss. Code R. § 10.1 creates an 

affirmative defense for upsets with conditions that are not fully consistent with the 

criteria that the EPA recommends in the SSM Policy. The EPA acknowledges that the 

SSM Policy is only guidance concerning what types of SIP provisions could be consistent 

with the requirements of the CAA. Nonetheless, through this rulemaking, the EPA is 

proposing to determine that 11-1-2 Miss. Code R. § 10.1 does not include criteria that are 

sufficiently robust to qualify as an acceptable affirmative defense provision. Although 

this provision does contain many criteria that are comparable to those the EPA 

recommends, it does not address several that the EPA believes to be necessary to assure 

that the affirmative defense is available only in appropriate circumstances. For example, 

11-1-2 Miss. Code R. § 10.1 does not contain criteria requiring the source to show that 

the malfunction event was not part of a recurring pattern indicative of inadequate design, 

operation, or maintenance. In addition, as discussed in section VII.B of this notice, the 

EPA believes that affirmative defense provisions should address the issue of single 

sources or groups of sources that have the potential to have adverse impacts on the 

NAAQS or PSD increments in one of two recommended ways. On its face, 11-1-2 Miss. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 196 of 322

Code R. § 10.1 does not appear to address this issue in either way. The EPA believes that 

the inclusion of the bar to enforcement for injunctive relief and the insufficiently robust 

qualifying criteria render 11-1-2 Miss. Code R. § 10.1 substantially inadequate to meet 

CAA requirements. 

The EPA also agrees with the Petitioner that the affirmative defense for excess 

emissions during maintenance provided in 11-1-2 Miss. Code R. § 10.3 is not consistent 

with CAA requirements. As explained in sections IV and VII.C of this notice, the EPA 

believes that affirmative defenses are only permissible under the CAA in the case of 

events that are beyond the control of the source, i.e., malfunctions. Affirmative defense 

provisions are not appropriate in the case of planned source actions, such as maintenance, 

because sources should be expected to comply with applicable emission limitations 

during those normal planned and predicted modes of source operation. Although this 

provision does contain parameters to limit its availability, it still provides an affirmative 

defense that is inconsistent with CAA requirements. The EPA believes that the inclusion 

of the affirmative defense for excess emissions during maintenance in 11-1-2 Miss. Code 

R. § 10.3 renders that provision substantially inadequate to meet CAA requirements. 

The EPA also agrees that 11-1-2 Miss. Code R. § 10.2(a)(2) contains an 

exemption for excess emissions during startup and shutdown events that is inconsistent 

with CAA requirements. The EPA acknowledges that the state has imposed some 

parameters on the scope of the exemption by requiring that the events be infrequent, of 

short duration, and required to avoid damage to equipment or people. However, the EPA 

does not interpret the CAA to allow for exemptions for excess emissions during startup 

and shutdown. As discussed in section VII.A of this notice, the EPA believes that sources 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 197 of 322

should be designed, operated, and maintained so that they can comply with applicable 

SIP emission limitations during normal modes of source operation. If appropriate, the 

state may elect to develop special emission limitations or other control measures that 

apply during startup and shutdown. The EPA believes that the inclusion of an exemption 

for excess emissions during startup and shutdown in 11-1-2 Miss. Code R. § 10.2 is 

substantially inadequate to meet CAA requirements. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to 11-1-2 Miss. Code R. § 

10.1, 11-1-2 Miss. Code R. § 10.2, and 11-1-2 Miss. Code R. § 10.3. None of these 

provisions is consistent with the requirements of the CAA as interpreted in the EPA's 

recommendations in the EPA's SSM Policy. The EPA believes that 11-1-2 Miss. Code R. 

§ 10.1 and 11-1-2 Miss. Code R. § 10.3 create affirmative defenses that are inconsistent 

with the fundamental requirements of the CAA with respect to emission limitations in 

SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by

purporting to create a bar to enforcement that applies not just to monetary penalties but 

also to injunctive relief, these provisions are inconsistent with the requirements of CAA 

sections 113 and 304. By not including sufficient criteria to assure that sources seeking to 

raise these affirmative defenses have in fact been properly designed, maintained, and 

operated, and to assure that sources have taken all appropriate steps to minimize excess 

emissions, 11-1-2 Miss. Code R. § 10.1 also fails to be sufficiently narrowly drawn to 

justify shielding from monetary penalties for violations. The comparable affirmative 

defense for maintenance in 11-1-2 Miss. Code R. § 10.3 is not consistent with CAA 

requirements because maintenance is a normal mode of source operation during which 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 198 of 322

the source should be expected to comply with the applicable emission limitations. Thus, 

these provisions are not appropriate as affirmative defense provisions because they are 

inconsistent with fundamental requirements of the CAA. 

The EPA is proposing to find that 11-1-2 Miss. Code R. § 10.2 is substantially

inadequate to meet CAA requirements because it provides an exemption for excess 

emissions that occur during startup and shutdown, which are normal modes of source 

operation during which sources should comply with applicable emission limitations. Such 

an exemption provision is inconsistent with the fundamental requirements of the CAA 

with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 

110(a)(2)(C), and 302(k). 

For these reasons, the EPA is proposing to find that these provisions are 

substantially inadequate to meet CAA requirements and thus proposing to issue a SIP call 

with respect to these provisions. 

7. North Carolina 

a. Petitioner's Analysis

The Petitioner objected to two generally applicable provisions in the North 

Carolina SIP that provide exemptions for emissions exceeding otherwise applicable SIP 

emission limitations at the discretion of the state agency during malfunctions (15A N.C. 

Admin. Code 2D.0535(c)) and during startup and shutdown (15A N.C. Admin. Code 

2D.0535(g)).136 The Petitioner argued that both provisions allow a state official to exempt 

sources from compliance with otherwise applicable SIP emission limitations, and 

therefore both provisions allow a state official to decide whether a violation has occurred. 

 

136 Petition at 57-58.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 199 of 322

This decision would preclude enforcement action by the EPA and citizens for both civil 

penalties and injunctive relief, and such an interpretation is inconsistent with the CAA 

and the EPA's SSM policy interpreting the CAA. The Petitioner noted that the director's 

discretion provision for malfunctions provided by 15A N.C. Admin. Code 2D.0535(c) is 

limited to 15 percent of operating time during each calendar year. According to the 

Petitioner, this temporal limit does not render the provision permissible under the CAA 

and the EPA's SSM policy interpreting the CAA, because the limit "does nothing to 

ensure that ambient air quality standards are met."137

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitations must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. 

The EPA believes that 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. Admin. 

Code 2D.0535(g) are impermissible as insufficiently bounded director's discretion 

provisions. The explicit text of 15A N.C. Admin. Code 2D.0535(c) states that "[a]ny 

excess emissions ... are considered a violation ... unless the owner or operator of the 

source of excess emissions demonstrates to the Director, that the excess emissions are the 

 

137 Petition at 58.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 200 of 322

result of a malfunction." Similarly, 15A N.C. Admin. Code 2D.0535(g) provides that a 

state official may determine that excess emissions during startup and shutdown are 

unavoidable, in which case emissions exceeding the otherwise applicable SIP limitations 

are not considered violations. These provisions vest the state official with unilateral 

power to grant an exemption from the otherwise applicable SIP emission limitation, 

without any public process at the state or federal level. Such a determination that the 

excess emissions in a given event do not constitute a violation could preclude 

enforcement by the EPA or through a citizen suit. While both provisions contain a list of 

factors that the state official "shall consider" in making the discretionary determination, 

they nevertheless empower the state official to create an exemption from the emission 

limitations, and such an exemption is impermissible in the first instance. Such a director's 

discretion provision undermines the emission limitations in the SIP, and the emissions 

reductions they are intended to achieve, and renders them less enforceable by the EPA or 

through a citizen suit. The EPA believes that the inclusion of an insufficiently bounded 

director's discretion provision in 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. 

Admin. Code 2D.0535(g) is thus a substantial inadequacy and renders these specific SIP 

provisions impermissible for this reason. 

Finally, the EPA notes that 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. 

Admin. Code 2D.0535(g) contain a number of criteria for consideration by the state 

official when deciding whether the excess emissions should be treated as exempt and thus 

not as a violation. Superficially, these criteria are similar to those recommended by the 

EPA for affirmative defense provisions for malfunctions to meet CAA requirements, but 

they are not presented as criteria for an affirmative defense. Instead, each provision is 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 201 of 322

structured so that if the source has met these criteria, the state official will deem the 

excess emissions not a violation. Moreover, instead of requiring that the source establish 

these facts in an administrative or judicial process, the provision appears to authorize the 

state official to make a unilateral determination whether the emissions are a violation and 

thus appears to bar enforcement by the EPA or through a citizen suit. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to 15A N.C. Admin. Code 

2D.0535(c) and 15A N.C. Admin. Code 2D.0535(g). The EPA believes that both of these 

provisions could be read to allow for exemptions from otherwise applicable SIP emission 

limitations through a state official's unilateral exercise of discretionary authority that is 

insufficiently bounded and includes no additional public process at the state or federal 

level. Moreover, the discretion created by this provision could be read to allow case-bycase exemptions from emission limitations when such exemptions are not permissible in 

the first instance. Such exemption provisions are inconsistent with the fundamental 

requirements of the CAA with respect to emission limitations in SIPs as required by

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating these 

impermissible exemptions, the state has defined violations in a way that would interfere 

with effective enforcement by the EPA and citizens for excess emissions during these 

events as provided in CAA sections 113 and 304. For these reasons, the EPA is proposing 

to find 15A N.C. Admin. Code 2D.0535(c) and 15A N.C. Admin. Code 2D.0535(g) are 

substantially inadequate to meet CAA requirements and thus is proposing to issue a SIP 

call with respect to these provisions. 

8. North Carolina: Forsyth County
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 202 of 322

a. Petitioner's Analysis

The Petitioner objected to two generally applicable provisions in the Forsyth 

County Code that provide exemptions for emissions exceeding otherwise applicable SIP 

emission limitations at the discretion of a local official during malfunctions (Forsyth 

County Code, ch. 3, 3D.0535(c)) and startup and shutdown (Forsyth County Code, ch. 3, 

3D.0535(g)).138 The Petitioner argued that these "local regulations have the same 

problems as the [North Carolina] state-wide regulations" addressed in the previous 

section.139 The Petitioner argued that both provisions allow the local official to exempt 

sources from compliance with otherwise applicable SIP emission limitations, and 

therefore both provisions allow the local official to decide whether a violation has 

occurred. This decision would preclude action by the EPA and citizens for both civil 

penalties and injunctive relief, and such a provision is inconsistent with the CAA and the 

EPA's SSM policy interpreting the CAA. 

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a 

government official's discretion. In accordance with the requirements of CAA section 

110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the 

definition of "emission limitations" in CAA section 302(k), such emission limitations 

must be continuous. Thus, any excess emissions above the level of the applicable 

 

138 Petition at 58.

139 Petition at 58.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 203 of 322

emission limitations must be considered violations, whether or not the state elects to 

exercise its enforcement discretion. 

The EPA believes that Forsyth County Code, ch. 3, 3D.0535(c) and Forsyth 

County Code, ch. 3, 3D.0535(g) are impermissible as insufficiently bounded director's 

discretion provisions. Forsyth County Code, ch. 3, 3D.0535(c) states that "[a]ny excess 

emissions ... are considered a violation ... unless the owner or operator of the source of 

excess emissions demonstrates to the Director, that the excess emissions are the result of 

a malfunction." Similarly, Forsyth County Code, ch. 3, 3D.0535(g) provides that a local 

official may determine that excess emissions during startup and shutdown are 

unavoidable, in which case emissions exceeding the otherwise applicable SIP limitations 

are not considered violations. These provisions vest the local official with unilateral 

power to grant an exemption from the otherwise applicable SIP emission limitation, 

without any public process at the local, state, or federal level. Such a determination that 

the excess emissions in a given event do not constitute a violation could preclude 

enforcement by the EPA or through a citizen suit. While both provisions contain a list of 

factors that the local official "shall consider" in making the discretionary determination, 

they nevertheless empower the local official to create an exemption from the emission 

limitation, and such an exemption is impermissible in the first instance. Such a director's 

discretion provision undermines the emission limitations in the SIP, and the emissions 

reductions they are intended to achieve, and renders them less enforceable by the EPA or 

through a citizen suit. The EPA believes that the inclusion of an insufficiently bounded 

director's discretion provision in Forsyth County Code, ch. 3, 3D.0535(c) and Forsyth 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 204 of 322

County Code, ch. 3, 3D.0535(g) is thus a substantial inadequacy and renders these 

specific SIP provisions impermissible for this reason. 

As with the comparable statewide SIP provisions, the EPA notes that Forsyth 

County Code, ch. 3, 3D.0535(c) and Forsyth County Code, ch. 3, 3D.0535(g) also would 

not qualify as affirmative defense provisions consistent with CAA requirements. The 

provisions authorize the local official to deem excess emissions exempt and thus not 

subject to enforcement for injunctive relief. The provisions also appear to authorize the 

local official to make a unilateral determination that the emissions are not a violation and 

thus to bar enforcement by the EPA or through a citizen suit. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to Forsyth County Code, ch. 

3, 3D.0535(c) and Forsyth County Code, ch. 3, 3D.0535(g). The EPA believes that both 

of these provisions could be read to allow for exemptions from otherwise applicable SIP 

emission limitations through a local official's unilateral exercise of discretionary

authority that is insufficiently bounded and includes no additional public process at the 

local, state, or federal level. Moreover, the discretion created by this provision could be 

read to allow case-by-case exemptions from emission limitations when such exemptions 

are not permissible in the first instance. Such exemption provisions are inconsistent with 

the fundamental requirements of the CAA with respect to emission limitations in SIPs as 

required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating 

these impermissible exemptions, the air agency has defined violations in a way that 

would interfere with effective enforcement by the EPA and citizens for excess emissions 

during these events as provided in CAA sections 113 and 304. For these reasons, the EPA 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 205 of 322

is proposing to find that Forsyth County Code, ch. 3, 3D.0535(c) and Forsyth County

Code, ch. 3, 3D.0535(g) are substantially inadequate to meet CAA requirements and thus 

is proposing to issue a SIP call with respect to these provisions. 

9. South Carolina 

a. Petitioner's Analysis

The Petitioner objected to three provisions in the South Carolina SIP, arguing that 

they contained impermissible source category- and pollutant-specific exemptions.140 The 

Petitioner characterized these provisions as providing exemptions from opacity limits for 

fuel-burning operations for excess emissions that occur during startup or shutdown (S.C. 

Code Ann. Regs. 61-62.5 St 1(C)), exemptions from NOx limits for special-use burners 

that are operated less than 500 hours per year (S.C. Code Ann. Regs. 61-62.5 St 

5.2(I)(b)(14)), and exemptions from sulfur limits for kraft pulp mills for excess emissions 

that occur during startup, shutdown, or malfunction events (S.C. Code Ann. Regs. St 

4(XI)(D)(4)). The Petitioner argued that such exemptions violate the fundamental CAA 

requirement that all excess emissions be considered violations and that they interfere with 

enforcement by the EPA and citizens. 

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations. In accordance with CAA sections 110(a)(2)(A) and 

302(k), SIPs must contain "emission limitations" and those limitations must be 

continuous. Thus, any excess emissions above the level of the applicable SIP emission 

limitation must be considered a violation of such limitation, regardless of whether the 

 

140 Petition at 65-66. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 206 of 322

state elects to exercise its enforcement discretion. SIP provisions that create exemptions 

such that the excess emissions during startup, shutdown, maintenance, or malfunctions 

are not violations of the applicable SIP emission limitations are inconsistent with the 

fundamental requirements of the CAA.

The first provision identified by the Petitioner states that "[t]he opacity standards 

set forth above do not apply during startup or shutdown." The EPA agrees with the 

Petitioner that the effect of this language is to exempt excess emissions that occur during 

startup or shutdown from otherwise applicable opacity standards, essentially treating such 

emissions as non-violations. The EPA believes that such automatic exemptions are 

impermissible under the CAA. By having SIP provisions that define what would 

otherwise be violations of the applicable SIP emission limitations as non-violations, the 

state has effectively negated the ability of the EPA or the public to enforce against those 

violations. Therefore, the EPA believes that the inclusion of such an automatic exemption 

in S.C. Code Ann. Regs. 61-62.5 St 1(C) is impermissible and renders the provision a 

substantial inadequacy under the CAA.

With respect to the Petitioner's second objection relating to the exemption for 

special-use burners, however, the EPA disagrees with the Petitioner's characterization of 

the provision. S.C. Code Ann. Regs. 61-62.5 St 5.2(I)(b)(14) provides: "The following 

sources are exempt from all requirements of this regulation unless otherwise specified: . . 

. (14) Special use burners, such as start-up/shut-down burners, that are operated less than 

500 hours a year." The Petitioner argued that this provision provides an exemption from 

otherwise applicable NOx limitations for excess emissions that occur during startup or 

shutdown. Although this provision superficially resembles an exemption for emissions 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 207 of 322

during startup and shutdown, the EPA interprets this provision merely to define a specific 

source category—special-use burners—that is not subject to control under S.C. Code 

Ann. Regs. 61-62.5 St 5.2, Control of Oxides of Nitrogen (NOx). In other words, the 

provision reflects that regulation of special-use burners is not necessary in order to meet 

the applicable reasonably available control technology (RACT) requirements or any other

CAA requirements for NOx emissions in this area. Rather than an exemption for NOx 

emissions during startup and shutdown for a source category that is regulated for NOx, 

this provision merely reflects that this category of source is not subject to regulation 

under S.C. Code Ann. Regs. 61-62.5 St 5.2. Therefore, the EPA disagrees with the 

Petitioner that S.C. Code Ann. Regs. 61-62.5 St 5.2(I)(b)(14) renders the South Carolina 

SIP substantially inadequate. 

Finally, the EPA agrees that S.C. Code Ann. Regs. St 4(XI)(D)(4) implicitly

includes impermissible exemptions for excess emissions during startup, shutdown, and 

malfunction events for the affected sources. The provision states that "[t]he Department 

will consider periods of excess emissions reported under Subpart D(3) of this section to 

be indicative of a violation if" the emissions from the specified source categories exceed 

certain limits over certain time periods. For example, for recovery furnaces, S.C. Code 

Ann. Regs. St 4(XI)(D)(4)(b) specifies that excess emissions will be "indicative of a 

violation" if "(a) the number of 12 hour exceedances from recovery furnaces is greater 

than 1% of the total number of contiguous 12 hour periods in a quarter (excluding periods 

of startup, shutdown, or malfunction . . . )." The parenthetical explicitly excludes the 

excess emissions that occur during startup, shutdown, and malfunction, automatically

treating those emissions as non-violations. The other two source category-specific 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 208 of 322

provisions to be considered in determining whether excess emissions are indicative of a 

violation contain similar parenthetical exclusions. Therefore, these provisions could 

reasonably be construed to preclude the EPA and the public from enforcing against 

violations that occur during these SSM events at these sources. The EPA believes that 

S.C. Code Ann. Regs. St 4(XI)(D)(4) includes automatic exemptions for excess 

emissions during SSM events for the three categories of sources and is thus substantially

inadequate to satisfy CAA requirements. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to S.C. Code Ann. Regs. 61-

62.5 St 1(C). The EPA believes that S.C. Code Ann. Regs. 61-62.5 St 1(C) allows for an 

exemption from otherwise applicable SIP emission limitations and that such exemptions 

are inconsistent with the fundamental requirements of CAA sections 110(a)(2)(A),

110(a)(2)(C), and 302(k). The EPA also proposes to grant the Petition with respect to 

S.C. Code Ann. Regs. St 4(XI)(D)(4). This provision appears to define violations at three 

source categories in a way that excludes excess emissions that occur during SSM events. 

It is unclear whether this provision is intended only to apply to the exercise of 

enforcement discretion by state personnel, but the EPA believes that it could reasonably 

be interpreted to preclude the EPA and citizen enforcement as well. Because S.C. Code 

Ann. Regs. St 4(XI)(D)(4) appears to define violations of the applicable emission 

limitations in a way that excludes excess emissions during SSM events, it is inconsistent 

with the fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). For these reasons, the EPA is proposing to find that S.C. Code Ann. Regs. 61-
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 209 of 322

62.5 St 1(C) and S.C. Code Ann. Regs. St 4(XI)(D)(4) are substantially inadequate to 

meet CAA requirements and proposes to issue a SIP call with respect to these provisions. 

However, the EPA proposes to deny the Petition with respect to S.C. Code Ann. 

Regs. 61-62.5 St 5.2(I)(b)(14), which does not exempt excess emissions from an 

otherwise applicable SIP emission limitation during startup and shutdown but rather 

excludes a specific source category from regulation under the South Carolina SIP, 

because such regulation was deemed unnecessary to meet other applicable CAA 

requirements. As a consequence, this provision does not constitute a substantial 

inadequacy in the SIP. 

10. Tennessee 

a. Petitioner's Analysis

The Petitioner objected to three provisions in the Tennessee SIP.141 First, the 

Petitioner objected to two provisions that authorize a state official to "excuse or proceed 

upon" (Tenn. Comp. R. & Regs. 1200-3-20-.07(1)) violations of otherwise applicable SIP 

emission limitations that occur during "malfunctions, startups, and shutdowns" (Tenn. 

Comp. R. & Regs. 1200-3-20-.07(3)). The Petitioner argued that together, these 

provisions constitute a "blanket exemption from enforcement at the unfettered discretion 

of" a state official. Further, the Petitioner contended that once a violation has been 

"excused" by the state official, that decision could preclude enforcement by the EPA or 

citizens in violation of the CAA. 

Second, the Petitioner objected to a provision that excludes excess visible 

emissions from the requirement that the state automatically issue a notice of violation for 

 

141 Petition at 67-69. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 210 of 322

all excess emissions (Tenn. Comp. R. & Regs. 1200-3-5-.02(1)). This provision states 

that "due allowance may be made for visible emissions in excess of that permitted in this 

chapter which are necessary or unavoidable due to routine startup and shutdown 

conditions." The Petitioner argued that Tenn. Comp. R. & Regs. 1200-3-5-.02(1) is 

inconsistent with EPA's interpretation of the CAA because it operates as a blanket 

exemption for opacity violations. 

b. The EPA's Evaluation

While the Petitioner suggested that Tenn. Comp. R. & Regs. 1200-3-20-.07(1)

and Tenn. Comp. R. & Regs. 1200-3-20-.07(3) combine to operate as an impermissible 

discretionary exemption, the EPA believes that these provisions are better understood as 

attempting to provide the state agency with the discretion to decide whether to pursue an 

enforcement action. As discussed more fully in section IX.A of this notice, the EPA's 

SSM Policy has consistently encouraged states to utilize traditional enforcement 

discretion within appropriate bounds for violations relating to excess emissions that occur 

during SSM events. Moreover, the 1982 SSM Guidance explicitly recommended criteria 

that states might consider in the event that they elected to formalize their enforcement 

discretion with provisions in the SIP. However, such enforcement discretion provisions in 

a SIP must be "state-only," meaning that the provisions apply only to the state's own 

enforcement personnel and not to the EPA or to others. Here, the Tennessee SIP goes too 

far because a court could reasonably conclude that the provisions in question preclude the 

EPA and the public from enforcing against violations that occur during SSM events if the 

state official chooses to "excuse" such violations. Therefore, the EPA ultimately agrees 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 211 of 322

with the Petitioner that Tenn. Comp. R. & Regs. 1200-3-20-.07(1) and Tenn. Comp. R. & 

Regs. 1200-3-20-.07(3) are substantially inadequate to satisfy CAA requirements. 

In regard to Tenn. Comp. R. & Regs. 1200-3-5-.02(1), the EPA agrees with the 

Petitioner that this provision operates as an impermissible discretionary exemption 

because it allows a state official to excuse excess visible emissions after giving "due 

allowance" to the fact that they were emitted during startup or shutdown events. The EPA 

believes that this provision is impermissible because it creates unbounded discretion that 

purports to make a state official the unilateral arbiter of whether the excess emissions in a 

given event constitute a violation of otherwise applicable SIP emission limitations. More 

importantly, the provision purports to authorize the state official to create exemptions 

from applicable SIP emission limitations when such exemptions are impermissible in the 

first instance. As discussed in more detail in section VII.A of this notice, these types of 

director's discretion provisions undermine the purpose of emission limitations and the 

reductions they are intended to achieve, thereby rendering them less enforceable by the 

EPA or through a citizen suit. The EPA believes that the inclusion of such a director's 

discretion provision in Tenn. Comp. R. & Regs. 1200-3-5-.02(1) is therefore a substantial 

inadequacy that renders the provision impermissible under the CAA. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to Tenn. Comp. R. & Regs. 

1200-3-20-.07(1) and Tenn. Comp. R. & Regs. 1200-3-20-.07(3). These enforcement 

discretion provisions could reasonably be interpreted to preclude EPA and citizen 

enforcement of applicable SIP emission limitations, in violation of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). The EPA also proposes to grant the Petition with 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 212 of 322

respect to Tenn. Comp. R. & Regs. 1200-3-5-.02(1). The discretion created by this 

provision allows for revisions of the applicable SIP emission limitations without meeting 

the applicable SIP revision requirements of the CAA, and it allows case-by-case 

exemptions from emission limitations when such exemptions are not permissible in the 

first instance. Thus, this provision is also inconsistent with CAA sections 110(a)(2)(A),

110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing to find that these 

provisions are substantially inadequate to meet CAA requirements and proposes to issue 

a SIP call with respect to these provisions. 

11. Tennessee: Knox County

a. Petitioner's Analysis

The Petitioner objected to a provision in the Knox County portion of the 

Tennessee SIP that bars evidence of a violation of SIP emission limitations from being 

used in a citizen enforcement action (Knox County Regulation 32.1(C)).142 The provision 

specifies that "[a] determination that there has been a violation of these regulations or 

orders issued pursuant thereto shall not be used in any law suit brought by any private 

citizen." The Petitioner argued that this provision would prevent reports of SSM 

conditions, which owners and operators are required to submit per Knox County

Regulation 34.1(A), from being used as evidence in citizen suits, thereby undermining

the express authorization of citizen enforcement actions under the CAA. 

b. The EPA's Evaluation

The EPA agrees with the Petitioner that Knox County Regulation 32.1(C) is 

inconsistent with the fundamental requirements of the CAA. Section 113(e)(1) of the 

 

142 Petition at 69. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 213 of 322

CAA requires a court to take into consideration "the duration of the violation as 

established by any credible evidence" in determining penalties in citizen enforcement 

actions. Moreover, section 114(c) of the CAA states that "[a]ny records, reports or 

information" obtained from sources "shall be available to the public . . . ." In accordance 

with these statutory mandates, the EPA promulgated its "credible evidence rule" in 1997. 

That rule states: "[f]or purpose of . . . establishing whether or not a person has violated or 

is in violation of any standard . . . , the [SIP] must not preclude the use, including the 

exclusive use, of any credible evidence or information, relevant to whether a source 

would have been in compliance with applicable requirements . . ."143

The EPA believes that the Knox County Regulation 32.1(C) runs afoul of these 

statutory and regulatory provisions. Knox County Regulation 32.1(c) explicitly bars a 

state official's determination that there has been a violation of a SIP emission limitation 

from being used as evidence in a citizen enforcement action, even though SIPs are 

prohibited from precluding the use of such evidence. The provision could also be 

interpreted to bar citizens from using evidence of a violation used by the state official in 

making such a determination, including reports of SSM conditions. Consequently, Knox 

County Regulation 32.1(C) is inconsistent with the fundamental requirements of CAA 

sections 113(e)(1) and 114(c) and the credible evidence rule. Moreover, by seeking to 

restrain the ability of private citizens to pursue enforcement actions, the provision is 

inconsistent with the fundamental enforcement structure created by Congress in CAA 

 

143 51 CFR 31.212(c); see also "Credible Evidence Revisions," 62 FR 8155 at 8314 (Feb. 

24, 1997).
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 214 of 322

section 304. As such, the EPA believes that the Knox County Regulation 32.1(C) 

constitutes a substantial inadequacy in the Tennessee SIP. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to Knox County Regulation 

32.1(C). This provision precludes the use of a state determination that a violation has 

occurred from being used as evidence in a citizen enforcement action, in violation of 

CAA sections 113(e)(1), 114(c), and 304, and the credible evidence rule. Therefore, the 

EPA is proposing to find that this provision is substantially inadequate to meet CAA 

requirements and proposes to issue a SIP call with respect to this provision in the Knox 

County portion of the state's SIP. 

12. Tennessee: Shelby County 

a. Petitioner's Analysis

The Petitioner objected to a provision in the Shelby County Code (Shelby County

Code § 16-87) that addresses enforcement for excess emissions that occur during 

"malfunctions, startups, and shutdowns" by incorporating by reference the state's 

provisions in Tenn. Comp. R. & Regs. 1200-3-20.

144 Shelby County Code § 16-87 

provides that "all such additions, deletions, changes and amendments as may

subsequently be made" to Tennessee's regulations will automatically become part of the 

Shelby County Code. The Petitioner argued that once Tennessee changes its regulations, 

those revised provisions will be effective in the Shelby County Code but will not be 

effective as part of the SIP until they are submitted to the EPA and approved. 

b. The EPA's Evaluation

 

144 Petition at 69-70. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 215 of 322

The EPA agrees that because Shelby County Code § 16-87 incorporates by 

reference provisions in the Tennessee SIP that are substantially inadequate, the Shelby

County portion of the Tennessee SIP is likewise substantially inadequate to satisfy the 

fundamental requirements of the CAA for the same reasons. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to Shelby County Code § 16-

87. For the same reasons that the EPA has determined that the Tennessee SIP is 

substantially inadequate to meet CAA requirements, the EPA believes that the Shelby

County portion of the Tennessee SIP is substantially inadequate as well. Therefore, the 

EPA proposes to issue a SIP call with respect to this provision in the Shelby County 

portion of the state's SIP. 

F. Affected States in EPA Region V 

1. Illinois 

a. Petitioner's Analysis 

The Petitioner objected to three generally applicable provisions in the Illinois SIP 

which together have the effect of providing discretionary exemptions from otherwise 

applicable SIP emission limitations, and such exemptions are impermissible under the 

CAA because the statute and the EPA's interpretation of the CAA in the SSM Policy

require that all such excess emissions be treated as violations.145,146 The Petitioner noted 

 

145 The EPA notes that the Petitioner also identified several additional pollutant-specific 

and source category-specific provisions in the Illinois SIP that it alleged are inconsistent 

with the CAA and the EPA's SSM Policy. However, the Petitioner did not request that the 

EPA address those SIP provisions in its remedy request, and thus the EPA is not 

addressing those provisions in this action. The EPA may elect to evaluate those 

provisions in a later action. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 216 of 322

that the provisions invite sources to request, during the permitting process, advance 

permission to continue to operate during a malfunction or breakdown, and, similarly to 

request advance permission to "violate" otherwise applicable emission limitations during 

startup (Ill. Admin. Code tit. 35 § 201.261). The Illinois SIP provisions establish criteria 

that a state official must consider before granting the advance permission to violate the 

emission limitations (Ill. Admin. Code tit. 35 § 201.262). However, the Petitioner 

asserted, the provisions state that, once granted, the advance permission to violate the 

emission limitations "shall be a prima facie defense to an enforcement action" (Ill. 

Admin. Code tit. 35 § 201.265). 

The Petitioner noted that Illinois has claimed that its SIP provisions do not 

provide for advance permission to violate emission limitations but that its SIP provisions 

instead authorize "case-by-case claims of exemption."147 The Petitioner argued that 

despite this explanation, the language in the SIP is not clear and appears to grant advance 

permission for violations during malfunction and startup events. Furthermore, the 

Petitioner objected because the effect of granting that permission would be to provide the 

source with an absolute defense to any later enforcement action, that is, "a defense 

[would] attach[] at the state's discretion." The Petitioner argued that this approach would 

violate the fundamental requirement that all excess emissions be considered violations. 

Finally, the Petitioner objected to the use of the term "prima facie defense" in Ill. 

Admin. Code tit. 35 § 201.265, arguing that the term is "ambiguous in its operation." The 

 

146 Petition at 33-36. 

147 Petition at 35 (citing Ill. Envtl. Prot. Agency, Statement of Basis for a Planned 

Revision of the CAAPP Permit for U.S. Steel Corp. Granite City Works (Mar. 15, 2011), 

at 26-27). The EPA notes that the Petitioner appears to have cited the incorrect portion of 

this document and that the correct citation is to pages 36-37. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 217 of 322

Petitioner argued that the provision is not clear regarding whether the defense is to be 

evaluated "in a judicial or administrative proceeding or whether the Agency determines 

its availability." Allowing defenses to be raised in these undefined contexts, the Petitioner 

argued, is "inconsistent with the enforcement structure of the Clean Air Act." The 

Petitioner asserted that "if . . . the "prima facie defense" is anything short of the 

"affirmative defense" as contemplated in the 1999 SSM Guidance, then "it clearly has the 

potential to interfere with EPA and citizen enforcement." 

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for discretionary exemptions from 

otherwise applicable SIP emission limitations. In accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance 

with the definition of "emission limitations" in CAA section 302(k), such emission 

limitations must be continuous. Thus, any excess emissions above the level of the 

applicable emission limitation must be considered violations, whether or not the state 

elects to exercise its enforcement discretion. The EPA agrees that together Ill. Admin. 

Code tit. 35 § 201.261, Ill. Admin. Code tit. 35 § 201.262, and Ill. Admin. Code tit. 35 § 

201.265148 can be read to create exemptions by authorizing a state official to determine in 

the permitting process that the excess emissions during startup and malfunction will not 

be considered violations of the applicable emission limitations. The language of the SIP 

 

148 The EPA notes that there are a number of other provisions in the same portion of the 

Illinois SIP that are integral to the regulation of startups, shutdowns, and malfunctions. 

Those provisions include Ill. Admin. Code tit. 35 § 201.149, Ill. Admin. Code tit. 35 § 

201.263, and Ill. Admin. Code tit. 35 § 201.264. The Petitioner did not object to these 

provisions in its Petition, but because they are part of a functional scheme in the SIP, the 

state may elect to revise these provisions in accordance with the EPA's proposal.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 218 of 322

on its face appears to permit the state official to grant advance permission to "continue to 

operate during a malfunction or breakdown" or "to violate the standards or limitations . . . 

during startup" (Ill. Admin. Code tit. 35 § 201.261(a)). 

The EPA notes that the Petitioner's characterization of Illinois's interpretation of 

its SIP is not accurate. While the Petitioner alleged that Illinois believed its SIP 

provisions to authorize "case-by-case exemptions," Illinois in fact described the effect of 

the permission granted under these provisions as providing the source with the: 

...opportunity to make a claim of malfunction/breakdown or startup, with 

the viability of such claim subject to specific review against the requisite 

requirements. Indeed, 35 IAC 201.265 clearly states that violating an 

applicable state standard even if consistent with any expression of 

authority regarding malfunction/breakdown or startup set forth in a permit 

shall only constitute a prima facie defense to an enforcement action for 

violation of said regulation. 

(Ill. Envtl. Prot. Agency, Statement of Basis for a Planned Revision of the CAAPP Permit 

for U.S. Steel Corp. Granite City Works (March 15, 2011), at 37.) Thus, the state claimed 

that under its SIP provisions, any excess emissions during periods of startup or 

malfunction would still constitute a "violation" and that the only effect of the permission 

granted by the state official in the permit would be to allow a source to assert a "prima 

facie defense" in an enforcement action. Even in light of this explanation, the EPA agrees 

that the plain language of the SIP provisions do not make explicit this limitation on the 

state official's authorization to grant exemptions. Indeed, by expressly granting 

"permission," the provisions are ambiguous and could be read as allowing the state 

official to be the unilateral arbiter of whether the excess emissions in a given 

malfunction, breakdown, or startup event constitute a violation. By deciding that an 

exceedance of the emission limitation was not a "violation," exercise of this discretion 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 219 of 322

could preclude enforcement by the EPA or through a citizen suit. Most importantly, 

however, the grant of permission would authorize the state official to create an exemption 

from the otherwise applicable SIP emission limitation, and such an exemption is 

impermissible in the first instance. Such a director's discretion provision undermines the 

emission limitations and the emission reductions they are intended to achieve and renders 

them less enforceable by EPA or through a citizen suit. The EPA believes that the 

inclusion of director's discretion provisions in Ill. Admin. Code tit. 35 § 201.261, Ill. 

Admin. Code tit. 35 § 201.262, and Ill. Admin. Code tit. 35 § 201.265 is thus a 

substantial inadequacy and renders these specific SIP provisions impermissible for this 

reason. 

Furthermore, even if the Illinois SIP provisions cited by the Petitioner are 

intended to provide only an affirmative defense to enforcement, rather than as advance 

permission to violate the otherwise applicable SIP emission limitations, the EPA agrees 

that the "prima facie defense" mechanism in Ill. Admin. Code tit. 35 § 201.261, Ill. 

Admin. Code tit. 35 § 201.262, and Ill. Admin. Code tit. 35 § 201.265 is not an 

acceptable affirmative defense provision under the CAA as interpreted in the EPA's SSM 

Policy. Although the EPA believes that narrowly drawn affirmative defenses are 

permitted for malfunction events (see section VII.B of this notice), the EPA's 

interpretation of the CAA is that such affirmative defenses can only shield the source 

from monetary penalties and cannot be a bar to injunctive relief. An affirmative defense 

provision that purports to bar any enforcement action for injunctive relief for violations 

of emission limitations is inconsistent with the requirements of CAA sections 113 and 

304. In addition, Illinois's SIP provisions allow sources to obtain a prima facie defense 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 220 of 322

for violations that occurred during startup periods, and, as discussed in section VII.C of 

this notice, the EPA does not believe affirmative defenses for violations of the otherwise 

applicable SIP emission limitations that occur during startup or shutdown periods is 

permissible under the CAA. 

Significantly, these Illinois SIP provisions are also deficient because, although not 

defined in the Illinois SIP, a prima facie defense typically would shift the burden of proof 

to the opposing party, in this case the party bringing the enforcement action against the 

source. The EPA's longstanding interpretation of the CAA is that an affirmative defense 

provision must be narrowly drawn and must require the source to establish that it has met 

the conditions to justify relief from monetary penalties for excess emissions in a given 

event. Thus, an acceptable affirmative defense under EPA's interpretation of the CAA 

places the burden on the source to demonstrate that it has met all the appropriate criteria 

before it is entitled to the defense. 

Lastly, the criteria that the Illinois SIP provisions require be met before advance 

permission and the prima facie defense may be granted are not consistent with the criteria 

that the EPA recommends in the SSM Policy. The EPA acknowledges that the SSM 

Policy is only guidance concerning what types of SIP provisions could be consistent with 

the requirements of the CAA. Nonetheless, through this rulemaking, the EPA is 

proposing to determine that Ill. Admin. Code tit. 35 § 201.261, Ill. Admin. Code tit. 35 § 

201.262, and Ill. Admin. Code tit. 35 § 201.265 do not include criteria that are 

sufficiently robust to qualify as an acceptable affirmative defense provision. The EPA 

believes that the inclusion of the complete bar to liability, including injunctive relief, the 

availability of the defense for violations during startup and shutdown, the burden-shifting 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 221 of 322

effect, and the insufficiently robust qualifying criteria in Ill. Admin. Code tit. 35 § 

201.261, Ill. Admin. Code tit. 35 § 201.262, and Ill. Admin. Code tit. 35 § 201.265, are 

substantial inadequacies and render these specific SIP provisions impermissible.

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to Ill. Admin. Code tit. 35 § 

201.261, Ill. Admin. Code tit. 35 § 201.262, and Ill. Admin. Code tit. 35 § 201.265. The 

EPA believes that these provisions allow for exemptions from the otherwise applicable 

emission limitations, and that such exemptions are inconsistent with the fundamental 

requirements of the CAA with respect to emission limitations in SIPs. In addition, Ill. 

Admin. Code tit. 35 § 201.261, Ill. Admin. Code tit. 35 § 201.262, and Ill. Admin. Code 

tit. 35 § 201.265 potentially allow for such an exemption through a state official's 

unilateral exercise of discretionary authority, and such provisions are inconsistent with 

the fundamental requirements of the CAA with respect to SIPs and SIP revisions in 

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing 

to find that Ill. Admin. Code tit. 35 § 201.261, Ill. Admin. Code tit. 35 § 201.262, and Ill. 

Admin. Code tit. 35 § 201.265 are substantially inadequate to meet CAA requirements 

and thus proposing to issue a SIP call with respect to these provisions. 

The EPA is proposing to grant the Petition with respect to these provisions even 

though the state has stated that the effect of these provisions only provides sources with a 

prima facie defense in an enforcement proceeding. Illinois's SIP provisions do not

constitute an affirmative defense provision consistent with the EPA's recommendations in 

the EPA's SSM Policy interpreting the CAA, for a number of reasons: it is not clear that 

the defense applies only to monetary penalties, which is inconsistent with the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 222 of 322

requirements of CAA sections 113 and 304; the defense applies to violations that 

occurred during startup periods, which is inconsistent with CAA sections 113 and 304; 

the provisions shift the burden of proof to the enforcing party; and finally, the provisions 

do not include sufficient criteria to assure that sources seeking to raise the affirmative 

defense have in fact been properly designed, maintained, and operated, and to assure that 

sources have taken all appropriate steps to minimize excess emissions. Accordingly, even 

if Ill. Admin. Code tit. 35 § 201.261, Ill. Admin. Code tit. 35 § 201.262, and Ill. Admin. 

Code tit. 35 § 201.265 are interpreted to provide a defense to enforcement rather than an 

exemption, the EPA is proposing to find that the provisions are substantially inadequate 

to meet CAA requirements and thus proposing to issue a SIP call with respect to these 

provisions. 

2. Indiana 

a. Petitioner's Analysis 

The Petitioner objected to a generally applicable provision in the Indiana SIP that 

allows for discretionary exemptions during malfunctions (326 Ind. Admin. Code 1-6-

4(a)).149,150 The Petitioner objected to the provision because it provides an exemption 

from the otherwise applicable SIP emission limitations, and such exemptions are 

impermissible under the CAA because the statute and the EPA's interpretation of the 

CAA in the SSM Policy require that all such excess emissions be treated as violations. 

 

149 The EPA notes that the Petitioner also identified several additional pollutant-specific 

and source category-specific provisions in the Indiana SIP that it alleged are inconsistent 

with the CAA and the EPA's SSM Policy. However, the Petitioner did not request that the 

EPA address those SIP provisions in its remedy request, and thus the EPA is not 

addressing those provisions in this action. The EPA may elect to evaluate those 

provisions in a later action. 

150 Petition at 36-37. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 223 of 322

The Petitioner noted that the provision is ambiguous because it states that excess 

emissions during malfunction periods "shall not be considered a violation" if the source 

demonstrates that a number of conditions are met (326 Ind. Admin. Code 1-6-4(a)), but 

the provision does not specify to whom or in what forum such demonstration must be 

made. If made in a showing to the state, the Petitioner argued, the provision would give a 

state official the sole authority to determine that the excess emissions were not a violation 

and could thus be read to preclude enforcement by the EPA or citizens in the event that 

the state official elects not to treat the excess emissions as a violation. Thus, in addition to 

creating an impermissible exemption for the excess emissions, the Petitioner argued that 

the SIP's provision is also inconsistent with the CAA as interpreted in the EPA's SSM 

Policy because it allows the state official to make a unilateral decision that the excess 

emissions were not a violation and thus bar enforcement for the excess emissions by the 

EPA and citizens. 

Alternatively, the Petitioner noted, if the demonstration was required to have been 

made in an enforcement context, the provision could be interpreted as providing an 

affirmative defense. The Petitioner argued that even if interpreted in this way, the 

provision is not permissible because it "appears to confuse an enforcement discretion 

approach with the affirmative defense approach." Furthermore, the Petitioner argued that 

326 Ind. Admin. Code 1-6-4(a) is not an acceptable affirmative defense provision 

because it "could be interpreted to preclude EPA and citizen enforcement and shield 

sources from injunctive relief." 

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for discretionary exemptions from 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 224 of 322

otherwise applicable SIP emission limitations. In accordance with the requirements of 

CAA section 110(a)(2)(A), SIPs must contain emission limitations and, in accordance 

with the definition of "emission limitations" in CAA section 302(k), such emission 

limitations must be continuous. Thus, any excess emissions above the level of the 

applicable emission limitation must be considered violations, whether or not the state 

elects to exercise its enforcement discretion. SIP provisions such as 326 Ind. Admin. 

Code 1-6-4(a) that can be interpreted to authorize a state official to determine unilaterally 

that the excess emissions during malfunctions are not violations of the applicable 

emission limitations are inconsistent with the fundamental requirements of the CAA with 

respect to emission limitations in SIPs. The EPA believes that the inclusion of a provision 

that allows discretionary exemptions in the SIP is thus a substantial inadequacy and 

renders 326 Ind. Admin. Code 1-6-4(a) impermissible. 

The EPA believes that 326 Ind. Admin. Code 1-6-4(a) is also impermissible 

because the provision can be interpreted to make a state official the unilateral arbiter of 

whether the excess emissions in a given malfunction event constitute a violation. The 326 

Ind. Admin. Code 1-6-4(a) provides that if a source demonstrates that four criteria are 

met, the excess emissions "shall not be considered a violation." Because the provision 

does not establish who is to evaluate whether the source has made an adequate 

demonstration, the provision could be read to authorize a state official to judge that 

violations have not occurred even though the emissions exceeded the applicable SIP 

emission limitations. These provisions therefore appear to vest the state official with the 

unilateral power to grant exemptions from otherwise applicable SIP emission limitations, 

without any additional public process at the state or federal level. By deciding that an 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 225 of 322

exceedance of the emission limitation was not a "violation," exercise of this discretion 

could preclude enforcement by the EPA or through a citizen suit. Most importantly, 

however, the provision could be read to authorize the state official to create an exemption 

from the otherwise applicable SIP emission limitation, and such an exemption is 

impermissible in the first instance. Such a director's discretion provision undermines the 

emission limitations and the emissions reductions they are intended to achieve and 

renders them less enforceable by EPA or through a citizen suit. The EPA believes that the 

inclusion of a director's discretion provision in 326 Ind. Admin. Code 1-6-4(a) is thus a 

substantial inadequacy and renders these specific SIP provisions impermissible for this 

reason. 

The EPA believes that even if 326 Ind. Admin. Code 1-6-4(a) is interpreted to 

allow the source to make the required demonstration only in the context of an 

enforcement proceeding, the conditions set forth in the provision do not render it an 

acceptable affirmative defense provision. Although the EPA believes that narrowly 

drawn affirmative defenses are permitted under the CAA for malfunction events (see 

section VII.B of this notice), the EPA's interpretation of the CAA is that such affirmative 

defenses can only shield the source from monetary penalties and cannot be a bar to 

injunctive relief. An affirmative defense provision that purports to bar any enforcement 

action for injunctive relief for violations of emission limitations is inconsistent with the 

requirements of CAA sections 113 and 304. 

Furthermore, Indiana's SIP provision is deficient because even if it were 

interpreted to create an affirmative defense rather than an exemption from the applicable 

emission limitations, it does so with conditions that are not consistent with the criteria 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 226 of 322

that the EPA recommends in the SSM Policy. The EPA acknowledges that the SSM 

Policy is only guidance concerning what types of SIP provisions could be consistent with 

the requirements of the CAA. Nonetheless, through this rulemaking, the EPA is 

proposing to determine that 326 Ind. Admin. Code 1-6-4(a) does not include criteria that 

are sufficiently robust to qualify as an acceptable affirmative defense provision under the 

CAA. The conditions in the provision are helpful but are not consistent with all of the 

criteria recommended in the EPA's SSM Policy. For example, this provision does not 

contain criteria requiring the source to establish that the malfunction event was not 

foreseeable and not part of a recurring pattern indicative of inadequate design, operation, 

or maintenance. Indeed, the explicit limitation that the "malfunctions have not exceeded 

five percent (5%), as a guideline, of the normal operational time of the facility" suggests 

that a source could be granted exemptions for excess emissions even though it was 

habitually violating the applicable emission limitations over some extended period of 

time. 

The EPA believes that the inclusion of the complete bar to liability, including 

injunctive relief, and the insufficiently robust qualifying criteria render 326 Ind. Admin. 

Code 1-6-4(a) substantially inadequate to meet CAA requirements. 

Significantly, the EPA notes that the correct meaning of 326 Ind. Admin. Code 1-

6-4(a) has been addressed in the past in conjunction with an interpretive letter from the 

state in 1984, which characterized the provision as an enforcement discretion provision 

applicable to state personnel rather than as a provision allowing exemptions from the 

emission limitations. The EPA appreciates Indiana's clarification of its reading of the 

provision in the 1984 letter, but at this juncture, in the course of reevaluating this 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 227 of 322

provision in light of the issues raised in the Petition, the EPA believes that 326 Ind. 

Admin. Code 1-6-4(a) contains regulatory language that requires formal revision to 

eliminate significant ambiguities. For example, the provision states that: "[e]missions 

temporarily exceeding the standards which are due to malfunctions . . . shall not be 

considered a violation of the rules provided the source demonstrates" four criteria. 

Indiana has acknowledged that it reads these provisions not to bar enforcement by the 

EPA or citizens in the event that the state does not pursue enforcement, but the EPA 

believes that the provision is sufficiently ambiguous on this point that a revision is 

necessary to ensure that outcome in the event of an enforcement action. 

As discussed in section VI of this notice, the EPA believes that in some instances 

it is appropriate to clarify provisions of a SIP submission through the use of interpretive 

letters. However, in some cases, there may be areas of regulatory ambiguity in a SIP 

provision that are significant and for which resolution is both appropriate and necessary. 

Because the text of 326 Ind. Admin. Code 1-6-4(a) provision is not clear on its face that it 

is limited to the exercise of enforcement discretion by state personnel but rather could be 

interpreted as a discretionary exemption from the otherwise applicable SIP emission 

limitations or as an inadequate affirmative defense provision, the EPA believes this SIP 

provision is substantially inadequate to meet CAA requirements. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to 326 Ind. Admin. Code 1-6-

4(a). The EPA believes that this provision appears on its face to allow for discretionary

exemptions from otherwise applicable SIP emission limitations, and that such exemptions 

are inconsistent with the fundamental requirements of the CAA with respect to emission 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 228 of 322

limitations in SIPs in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). This provision 

allows for exemptions through a state official's unilateral exercise of discretionary

authority that includes no additional public process at the state or federal level, and such 

provisions are inconsistent with the fundamental requirements of the CAA with respect to 

SIPs and SIP revisions. Moreover, the discretion created by this provision allows caseby-case exemptions from emission limitations when such exemptions are not permissible 

in the first instance. 

Even if the EPA were to interpret 326 Ind. Admin. Code 1-6-4(a) to be an 

affirmative defense applicable in an enforcement context, the provision is not consistent 

with the EPA's recommendations in the EPA's SSM Policy interpreting the CAA. By

purporting to create a bar to enforcement that applies not just to monetary penalties but 

also to injunctive relief, and by including criteria inconsistent with those recommended 

by the EPA for affirmative defense provisions, this provision is inconsistent with the 

requirements of CAA sections 113 and 304. For these reasons, the EPA is proposing to 

find that 326 Ind. Admin. Code 1-6-4(a) is substantially inadequate to meet CAA 

requirements and thus proposing to issue a SIP call with respect to this provision. 

3. Michigan 

a. Petitioner's Analysis 

The Petitioner objected to a generally applicable provision in Michigan's SIP that 

provides for an affirmative defense to monetary penalties for violations of otherwise 

applicable SIP emission limitations during periods of startup and shutdown.151 The 

Petitioner argued that affirmative defenses for excess emissions are inconsistent with the 

 

151 Petition at 44-46. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 229 of 322

CAA and requested that the provision be removed from Michigan's SIP. Alternatively, if 

such a provision were to remain in the SIP, the Petitioner asked that the SIP be amended 

to address two deficiencies. 

First, the Petitioner objected to one of the criteria in the affirmative defense 

provision, Mich. Admin. Code r. 336.1916, which makes the defense available to a single 

source or small group of sources as long as such source did not "cause[] an exceedance of 

the national ambient air quality standards or any applicable prevention of significant 

deterioration increment." The Petitioner argued that this criterion of Michigan's 

affirmative defense provision is contrary to the EPA's SSM Policy because "[s]ources 

with the potential to cause an exceedance should be more strictly controlled at all times 

and should not be able to mire enforcement proceedings in the difficult empirical 

questions of whether or not the NAAQS or PSD increments were exceeded as a matter of 

fact" (emphasis in original). 

Second, the Petitioner objected to the availability of Michigan's affirmative 

defense provision, Mich. Admin. Code r. 336.1916, for violations of "an applicable 

emission limitation," which Petitioner pointed out would include "limits derived from 

federally promulgated technology based standards, such as NSPSs and NESHAPs." The 

Petitioner argued that according to the EPA's SSM Policy, sources should not be able to 

seek an affirmative defense for violations of these federal technology-based standards. 

b. The EPA's Evaluation 

As discussed in more detail in section IV.B of this notice, the EPA does not agree

with the Petitioner that affirmative defenses should never be permissible in SIPs. The 

EPA believes that narrowly drawn affirmative defenses can be permitted under the CAA 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 230 of 322

for malfunction events, because where excess emissions are entirely beyond the control 

of the owner or operator of the source, it can be appropriate to provide limited relief to 

claims for monetary penalties (see section VII.B of this notice). However, as discussed in 

section IV.B of this notice, this basis for permitting affirmative defenses for malfunctions 

does not translate to planned events such as startup and shutdown. By definition, the 

owner or operator of a source can foresee and plan for startup and shutdown events, and 

therefore the EPA believes that states should be able to establish, and sources should be 

able to comply with, the applicable emission limitations or other controls measures 

during these periods of time. A source can be designed, operated, and maintained to 

control and to minimize emissions during such normal expected events. If sources in fact 

cannot meet the otherwise applicable emission limitations during planned events such as 

startup and shutdown, then a state may elect to develop specific alternative requirements 

that apply during such periods, so long as they meet other applicable CAA requirements. 

The EPA believes that the inclusion of an affirmative defense that applies only to 

violations that occurred during periods of startup and shutdown in Mich. Admin. Code r. 

336.1916 is thus a substantial inadequacy and renders this specific SIP provision 

impermissible. 

The EPA does not agree with the Petitioner that affirmative defense provisions 

are, per se, impermissible for a "single source or small group of sources." The EPA 

believes that a SIP provision may meet the overarching statutory requirements through a 

demonstration by the source that the excess emissions during the SSM event did not in 

fact cause a violation of the NAAQS. As discussed in section VII B of this notice, the 

EPA considers this another means by which to assure that affirmative defense provisions 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 231 of 322

are narrowly drawn to justify relief from monetary penalties for excess emissions during 

malfunction events. Through this alternative approach, sources also have an incentive to 

comply with applicable emission limitations and thereby to support the larger objective of 

attaining and maintaining the NAAQS. 

The EPA does agree that an approvable affirmative defense provision, consistent 

with CAA requirements, cannot apply to any federal emission limitations approved into a 

SIP. Thus, if the state has elected to incorporate NSPS or NESHAP into its SIP for any

purpose, such as to obtain credit for the resulting emissions reductions as part of an 

attainment plan, the SIP cannot have a provision that would extend any affirmative 

defense to sources beyond what is otherwise provided in the underlying federal 

regulation. To the extent that any affirmative defense is warranted during malfunctions 

for these technology-based standards, the federal standards contained in the EPA's 

regulations already specify the appropriate affirmative defense. No additional or different 

affirmative defense provision applicable through a SIP provision is warranted or 

appropriate. On its face, Mich. Admin. Code r. 336.1916 does not explicitly limit its 

scope to exclude federal emission limitations approved into the SIP. Thus, this would be 

an additional way in which the provision is substantially inadequate to meet CAA 

requirements. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to Mich. Admin. Code r. 

336.1916, which provides for an affirmative defense to violations of applicable emission 

limitations during startup and shutdown events. The availability of an affirmative defense 

for excess emissions that occur during planned events is contrary to the EPA's 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 232 of 322

interpretation of the CAA to allow such affirmative defenses only for events beyond the 

control of the source, i.e., during malfunctions. For this reason, the EPA is proposing to 

find that Mich. Admin. Code r. 336.1916 is substantially inadequate to meet CAA 

requirements and thus proposing to issue a SIP call with respect to this provision.

4. Minnesota 

a. Petitioner's Analysis 

The Petitioner objected to a provision in the Minnesota SIP that provides 

automatic exemptions for excess emissions resulting from flared gas at petroleum 

refineries when those flares are caused by startup, shutdown, or malfunction (Minn. R. 

7011.1415).152 The provision states that: "The combustion of process upset gas in a flare, 

or the combustion in a flare of process gas or fuel gas which is released to the flare as a 

result of relief valve leakage is exempt from the standards of performance set forth in this 

regulation." The Petitioner noted that "process upset gas" is defined in the regulation as 

"any gas generated by a petroleum refinery process unit as a result of start-up, shutdown, 

upset, or malfunction" (Minn. R. 7011.1400(12)). The Petitioner argued that such an 

automatic exemption for emissions during startup, shutdown, or malfunction in a SIP 

provision is a violation of the fundamental requirements of the CAA and the EPA's SSM 

Policy that all excess emissions be considered violations, and that such an exemption 

interferes with enforcement by the EPA and citizens. 

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for automatic exemptions from 

otherwise applicable SIP emission limitations and requirements. In accordance with the 

 

152 Petition at 46-47. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 233 of 322

requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, 

in accordance with the definition of "emission limitations" in CAA section 302(k), such 

emission limitations must be continuous. Thus, any excess emissions above the level of 

the applicable emission limitation must be considered violations of such limitations, 

whether or not the state elects to exercise its enforcement discretion. SIP provisions that 

create exemptions such that the excess emissions during startup, shutdown, or 

malfunction are not violations are inconsistent with the fundamental requirements of the 

CAA with respect to emission limitations in SIPs. 

The automatic exemption provision identified by the Petitioner explicitly states 

that "process upset gas," which is defined as gas generated by the affected sources as a 

result of start-up, shutdown, upset, or malfunction, "is exempt from the standards" (Minn. 

R. 7011.1415). Any exceedances of the standards during those periods would therefore 

not be considered a violation under this provision. With respect to the Petitioner's 

concern that these exemptions could interfere with enforcement by the EPA or citizens, 

the EPA agrees that this is one of the critical reasons why such provisions are 

impermissible under the CAA. By having SIP provisions that define what would 

otherwise be violations of the applicable emission limitations as non-violations, the state 

has effectively negated the ability of the EPA or the public to enforce against those 

violations. The EPA believes that the inclusion of such automatic exemptions from SIP 

requirements in Minn. R. 7011.1415 is thus a substantial inadequacy and renders this 

specific SIP provision impermissible. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to Minn. R. 7011.1415. The 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 234 of 322

EPA believes that this provision allows for automatic exemptions from the otherwise 

applicable SIP emission limitations and requirements, and that such exemptions are 

inconsistent with the fundamental requirements of the CAA with respect to emission 

limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). In 

addition, by creating these impermissible exemptions, the state has defined violations in a 

way that would interfere with effective enforcement by the EPA and citizens for excess 

emissions during these events as provided in CAA sections 113 and 304. For these 

reasons, the EPA is proposing to find that Minn. R. 7011.1415 is substantially inadequate 

to meet CAA requirements and thus is proposing to issue a SIP call with respect to this 

provision. 

5. Ohio 

a. Petitioner's Analysis 

The Petitioner first objected to a generally applicable provision in the Ohio SIP 

that allows for discretionary exemptions during periods of scheduled maintenance (Ohio 

Admin. Code 3745-15-06(A)(3)).153 The provision provides the state official with the 

authority to permit continued operation of a source during scheduled maintenance "where 

a complete source shutdown may result in damage to the air pollution sources or is 

otherwise impossible or impractical." Upon application, the state official "shall authorize 

the shutdown of the air pollution control equipment if, in his judgment, the situation 

justifies continued operation of the sources." The Petitioner also objected to two source 

category-specific and pollutant-specific provisions that provide for discretionary

exemptions during malfunctions (Ohio Admin. Code 3745-17-07(A)(3)(c) and Ohio 

 

153 Petition at 60-61. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 235 of 322

Admin. Code 3745-17-07(B)(11)(f)).154

The Petitioner argued that these provisions could provide exemptions from the 

otherwise applicable SIP emission limitations, and such exemptions are impermissible 

under the CAA because the statute and the EPA's interpretation of the CAA in the SSM 

Policy require that all such excess emissions be treated as violations. Moreover, the 

Petitioner objected to these discretionary exemptions because the state official's grant of 

permission to continue to operate during the period of maintenance, or to exempt sources 

from otherwise applicable SIP emission limitations during malfunctions, could be 

interpreted to excuse excess emissions during such time periods and could thus be read to 

preclude enforcement by the EPA or citizens in the event that the state official elects not 

to treat the events as violations. Thus, in addition to creating an impermissible exemption 

for the excess emissions, the Petitioner argued, the provisions are also inconsistent with 

the CAA as interpreted in the EPA's SSM Policy because they allow the state official to 

make a unilateral decision that the excess emissions were not a violation and thus bar 

enforcement for the excess emissions by the EPA and citizens. 

The Petitioner also objected to a source category-specific provision in the Ohio 

SIP that allows for an automatic exemption from applicable emission limitations and 

requirements during periods of startup, shutdown, malfunction, or regularly scheduled 

 

154 The EPA notes that Petitioner did not categorize these provisions as discretionary

exemptions, but both Ohio Admin. Code 3745-17-07(A)(3)(c) and Ohio Admin. Code 

3745-17-07(B)(11)(f) provide for exemptions during malfunctions if sources have 

complied with Ohio Admin. Code 3745-15-06(C), which allows the director to "evaluate"

malfunction reports required by the rule and to "take appropriate action upon a 

determination." The EPA therefore believes that the mechanism by which exemptions are 

granted under Ohio Admin. Code 3745-17-07(A)(3)(c) and Ohio Admin. Code 3745-17-

07(B)(11)(f) is by exercise of the state director's discretion.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 236 of 322

maintenance activities (Ohio Admin. Code 3745-14-11(D)). The Petitioner objected 

because this provision provides an exemption from the otherwise applicable SIP 

requirements, and such exemptions are inconsistent with the requirements of the CAA as 

interpreted in the EPA's SSM Policy. The Petitioner argued that the CAA and the EPA's 

interpretation of the CAA in the SSM Policy require that all excess emissions be treated 

as violations. The Petitioner also objected to this provision because, by providing an 

outright exemption from otherwise applicable requirements, the state has defined these 

excess emissions as not violations, thereby precluding enforcement by the EPA or

citizens for the excess emissions that would otherwise be violations. 

Finally, the Petitioner objected to provisions that contain exemptions for 

Hospital/Medical/Infectious Waste Incinerator (HMIWI) sources during startup, 

shutdown, and malfunction (Ohio Admin. Code 3745-75-02(E), Ohio Admin. Code 

3745-75-02(J), Ohio Admin. Code 3745-75-03(I), Ohio Admin. Code 3745-75-04(K), 

Ohio Admin. Code 3745-75-04(L)). The Petitioner requested that these exemptions be 

removed entirely from Ohio's SIP.

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations through the exercise of a state official's discretion. In 

accordance with the requirements of CAA section 110(a)(2)(A), SIPs must contain 

emission limitations and, in accordance with the definition of "emission limitations" in 

CAA section 302(k), such emission limitations must be continuous. Thus, any excess 

emissions above the level of the applicable emission limitation must be considered

violations, whether or not the state elects to exercise its enforcement discretion. SIP 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 237 of 322

provisions that create exemptions such that excess emissions during startup, shutdown, 

malfunctions, or maintenance are not violations of the applicable emission limitations are 

inconsistent with the fundamental requirements of the CAA with respect to emission 

limitations in SIPs. The EPA believes that the inclusion of such exemptions from the 

emission limitations in Ohio Admin. Code 3745-15-06(A)(3), Ohio Admin. Code 3745-

17-07(A)(3)(c), Ohio Admin. Code 3745-17-07(B)(11)(f), and Ohio Admin. Code 3745-

15-06(C) is thus a substantial inadequacy and renders these specific SIP provisions 

impermissible. 

The EPA believes that Ohio Admin. Code 3745-15-06(A)(3), Ohio Admin. Code 

3745-17-07(A)(3)(c), Ohio Admin. Code 3745-17-07(B)(11)(f), and Ohio Admin. Code 

3745-15-06(C) are also impermissible as unbounded director's discretion provisions that 

make a state official the unilateral arbiter of whether the excess emissions in a given 

event constitute a violation. In the case of Ohio Admin. Code 3745-15-06(A)(3), the 

provision authorizes the state official to allow continued operation at sources "during 

scheduled maintenance of air pollution control equipment." The state official's grant of 

permission to continue to operate during the period of maintenance could be interpreted 

to excuse excess emissions during that period and could thus be read to preclude 

enforcement by the EPA or through a citizen suit in the event that the state official elects 

not to treat the excess emissions as a violation. In addition, the provision vests the state 

official with the unilateral power to grant an exemption from the otherwise applicable 

SIP emission limitations, without any additional public process at the state or federal 

level. Although the provision does require sources to submit a report indicating the 

expected length of the event and estimated quantities of emissions, among other things, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 238 of 322

ultimately the state official makes his determination "if, in his judgment, the situation 

justifies continued operation of the sources." The state official's discretion is therefore not 

sufficiently bounded and extends to granting a complete exemption from applicable 

emission limitations that would be impermissible in the first instance. 

The EPA believes that Ohio Admin. Code 3745-17-07(A)(3)(c), which exempts 

sources from visible particulate matter limitations during malfunctions, and Ohio Admin. 

Code 3745-17-07(B)(11)(f), which exempts sources from fugitive dust limitations during 

malfunctions, also impermissibly provide exemptions through exercise of a state official's 

discretion because the provisions authorize exemptions if the source has complied with 

Ohio Admin. Code 3745-15-06(C). The Ohio Admin. Code 3745-15-06(C) provides the 

state official with the discretion to "evaluate" reports of malfunctions submitted by

sources and to "take appropriate action upon a determination" that sources have not 

adequately met the requirements of the provision. Although the Petitioner did not request 

that the EPA evaluate Ohio Admin. Code 3745-15-06(C), it is the regulatory mechanism 

by which exemptions are granted in the two provisions to which the Petitioner did object. 

Similar to Ohio Admin. Code 3745-15-06(A)(3), which is the director's discretion 

provision discussed earlier in this section of the notice, the EPA finds that Ohio Admin. 

Code 3745-17-07(A)(3)(c) and Ohio Admin. Code 3745-17-07(B)(11)(f) could be 

interpreted to excuse excess emissions during malfunction events and could thus be read 

to preclude enforcement by the EPA or through a citizen suit in the event that the state 

official elects not to treat the excess emissions as a violation. In addition, the provision 

vests the state official with the unilateral power to grant an exemption from otherwise 

applicable SIP emission limitations, without any additional public process at the state or 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 239 of 322

federal level. Although the provision does require the state official to consider the reports 

filed by sources before making a determination, the provision remains insufficiently

bounded. 

Most importantly, however, these provisions all purport to authorize the state 

official to create exemptions from the emission limitations, and such exemptions are 

impermissible in the first instance. Such director's discretion provisions undermine the 

emission limitations and the emissions reductions they are intended to achieve and render 

them less enforceable by EPA or through a citizen suit. The EPA believes that the 

inclusion of an unbounded director's discretion provision in Ohio Admin. Code 3745-15-

06(A)(3), Ohio Admin. Code 3745-17-07(A)(3)(c), Ohio Admin. Code 3745-17-

07(B)(11)(f), and Ohio Admin. Code 3745-15-06(C) is thus a substantial inadequacy and 

renders these specific SIP provisions impermissible for this reason, in addition to the 

creation of impermissible exemptions. 

With regard to the Petitioner's objection to the exemption for portland cement 

kilns from otherwise applicable requirements at Ohio Admin. Code 3745-14-11(D), the 

EPA agrees that the CAA does not allow for automatic exemptions from otherwise 

applicable SIP emission limitations and requirements. In accordance with the 

requirements of CAA section 110(a)(2)(A), SIPs must contain emission limitations and, 

in accordance with the definition of "emission limitations" in CAA section 302(k), such 

emission limitations must be continuous. Thus, any excess emissions above the level of 

the applicable emission limitation must be considered violations of such limitations, 

whether or not the state elects to exercise its enforcement discretion. SIP provisions that 

create exemptions such that the excess emissions during startup, shutdown, malfunction, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 240 of 322

or maintenance are not violations are inconsistent with the fundamental requirements of 

the CAA with respect to emission limitations in SIPs. 

The automatic exemption provision in Ohio Admin. Code 3745-14-11(D) 

explicitly states that the regulation's requirement that the use of control measures such as 

low-NOx burners during the ozone season and monitoring, reporting, and recordkeeping 

of ozone season NOx emissions "shall not apply" during periods of startup, shutdown, 

malfunction, and maintenance. The exemptions therefore provide that the excess 

emissions resulting from failure to run required control measures will not be violations, 

contrary to the requirements of the CAA. In addition, exemption from monitoring, 

recordkeeping, and reporting requirements during these events affects the enforceability

of the emission limitation in the SIP provision. Moreover, failure to account accurately 

for excess emissions at sources during SSM events has a broader impact on NAAQS 

implementation and SIP planning, because such accounting directly informs the 

development of emissions inventories and emissions modeling. With respect to the 

Petitioner's concern that these exemptions preclude enforcement by the EPA or citizens, 

the EPA agrees that this is one of the critical reasons why such provisions are 

impermissible under the CAA. By having SIP provisions that define what would 

otherwise be violations of the applicable emission limitations as non-violations, the state 

has effectively negated the ability of the EPA or the public to enforce against those 

violations. The EPA believes that the inclusion of such automatic exemptions from SIP 

requirements in Ohio Admin. Code 3745-14-11(D) is thus substantially inadequate to 

meet CAA requirements. 

Finally, the EPA disagrees that the provisions providing exemptions for HMIWI
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 241 of 322

must be removed from the SIP. Ohio Admin. Code 3745-75-02(E), Ohio Admin. Code 

3745-75-02(J), Ohio Admin. Code 3745-75-03(I), Ohio Admin. Code 3745-75-04(K), 

and Ohio Admin. Code 3745-75-04(L) are not approved into Ohio's SIP, but rather those 

rules were approved as part of the separate state plan to meet the applicable emissions 

guidelines under CAA § 111(d) and 40 CFR Part 60. Because those rules are not in the 

Ohio SIP and are not related to any provisions in the SIP, they do not represent a

substantial inadequacy in the SIP.

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to Ohio Admin. Code 3745-

15-06(A)(3), Ohio Admin. Code 3745-17-07(A)(3)(c), and Ohio Admin. Code 3745-17-

07(B)(11)(f). The EPA believes that these provisions allow for exemptions from the 

otherwise applicable SIP emission limitations, and that such exemptions are inconsistent 

with the fundamental requirements of the CAA with respect to emission limitations in 

SIPs. In addition, Ohio Admin. Code 3745-15-06(A)(3), Ohio Admin. Code 3745-17-

07(A)(3)(c), Ohio Admin. Code 3745-17-07(B)(11)(f), and by extension, Ohio Admin. 

Code 3745-15-06(C), allow for such exemptions through a state official's unilateral 

exercise of discretionary authority that is insufficiently bounded and includes no 

additional public process at the state or federal level, and such provisions are inconsistent 

with the fundamental requirements of the CAA with respect to SIPs and SIP revisions. 

Moreover, the discretion created by these provisions allows case-by-case exemptions 

from emission limitations when such exemptions are not permissible in the first instance. 

As described in section VII.A of this notice, such provisions are inconsistent with 

fundamental CAA requirements for SIP revisions. For these reasons, the EPA is 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 242 of 322

proposing to find that Ohio Admin. Code 3745-15-06(A)(3), Ohio Admin. Code 3745-

17-07(A)(3)(c), Ohio Admin. Code 3745-17-07(B)(11)(f), and Ohio Admin. Code 3745-

15-06(C) are substantially inadequate to meet CAA requirements and thus is proposing to 

issue a SIP call with respect to these provisions. 

The EPA also proposes to grant the Petition with respect to Ohio Admin. Code 

3745-14-11(D). The EPA believes that this provision allows for automatic exemptions 

from the otherwise applicable SIP emission limitations and requirements, and that such 

exemptions are inconsistent with the fundamental requirements of the CAA with respect 

to emission limitations in SIPs as required by CAA sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). In addition, by creating these impermissible exemptions, the state has defined 

violations in a way that would interfere with effective enforcement by the EPA and 

citizens for excess emissions during these events as provided in CAA sections 113 and 

304. For these reasons, the EPA is proposing to find that this provision is substantially

inadequate to meet CAA requirements and thus is proposing to issue a SIP call with 

respect to this provision. 

The EPA proposes to deny the Petition with respect to Ohio Admin. Code 3745-

75-02(E), Ohio Admin. Code 3745-75-02(J), Ohio Admin. Code 3745-75-03(I), Ohio 

Admin. Code 3745-75-04(K), and Ohio Admin. Code 3745-75-04(L). These provisions

are not part of the Ohio SIP and thus cannot represent a substantial inadequacy in the SIP. 

G. Affected States in EPA Region VI 

1. Arkansas 

a. Petitioner's Analysis 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 243 of 322

The Petitioner objected to two provisions in the Arkansas SIP.155 First, the 

Petitioner objected to a provision that provides an automatic exemption for excess 

emissions of volatile organic compounds ("VOC") for sources located in Pulaski County

that occur due to malfunctions (Reg. 19.1004(H)). The provision states that excess 

emissions "which are temporary and result solely from a sudden and unavoidable 

breakdown, malfunction or upset of process or emission control equipment, or sudden 

and unavoidable upset or operation will not be considered a violation . . . ." The 

Petitioner argued that this language is impermissible because the CAA and the EPA's 

interpretation of the CAA in the SSM Policy require that all excess emissions be treated 

as violations. 

Second, the Petitioner objected to a separate provision that provides a "complete 

affirmative defense" for excess emissions that occur during emergency conditions (Reg.

19.602). The Petitioner argued that this provision, which the state may have modeled 

after the EPA's title V regulations, is impermissible because its application is not clearly 

limited to operating permits.

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations. In accordance with CAA sections 110(a)(2)(A) and 

302(k), SIPs must contain "emission limitations" and those limitations must be 

 

155 Petition at 24. The Petitioner cites to 014-01-1 Ark. Code R. §§ 19.1004(H) and 

19.602. The EPA interprets these citations as references to Reg. 19.1004(H) and Reg. 

19.602 of the Arkansas Pollution Control & Ecology Commission (APC&EC), 

Regulation No. 19 – Regulations of the Arkansas Plan of Implementation for Air 

Pollution Control, as approved by EPA on Apr. 12, 2007 (72 FR 18394) (hereinafter 

referred to as Reg. 19.1004(H) and Reg. 19.602).
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 244 of 322

continuous. Thus, any excess emissions above the level of the applicable SIP emission 

limitation must be considered a violation of such limitation, regardless of whether the 

state elects to exercise its enforcement discretion. SIP provisions that create exemptions 

from applicable emission limitations during malfunctions or emergency conditions, 

however defined, are inconsistent with the fundamental requirements of the CAA. 

The first provision identified by the Petitioner explicitly states that excess 

emissions of VOC "will not be considered a violation" of the applicable emission 

limitation if they occur due to an "unavoidable breakdown" or "malfunction." This 

exemption in Reg. 19.1004(H) is impermissible even though the state has limited the 

exemption to unavoidable breakdowns and malfunctions. The core problem remains that 

the provision provides an impermissible exemption from the otherwise applicable VOC 

emission limitations. In addition, by having a SIP provision that defines what would 

otherwise be violations of the applicable emission limitations as non-violations, the state 

has effectively negated the ability of the EPA or the public to enforce against those 

violations. The EPA believes that the inclusion of such an automatic exemption in Reg.

19.1004(H) is thus a substantial inadequacy and renders this SIP provision impermissible 

under the CAA. 

The second provision identified by the Petitioner defines "emergency" conditions 

that may cause a source to exceed a technology-based emission limitation under a permit 

and provides a "complete affirmative defense" to an action brought for non-compliance 

with such limitations if certain criteria are met. The EPA believes that Reg. 19.602 is 

substantially inadequate for three reasons. First, the provision does not explicitly limit the 

affirmative defense to civil penalties. Although the EPA believes that narrowly drawn 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 245 of 322

affirmative defenses are permitted under the CAA for malfunction events (see sections 

IV.B and VII.B of this notice), the EPA's interpretation of the CAA is that such 

affirmative defenses can only shield the source from monetary penalties and cannot be a 

bar to injunctive relief. An affirmative defense provision that purports to bar any

enforcement action for injunctive relief for violations of emission limitations is 

inconsistent with the requirements of CAA sections 113 and 304. Second, the provision 

does not contain elements for establishing the affirmative defense consistent with all of 

the recommended criteria in the EPA's SSM Policy for SIP provisions. The EPA 

acknowledges that the SSM Policy is only guidance concerning what types of SIP 

provisions could be consistent with the requirements of the CAA. Nonetheless, through 

this rulemaking, the EPA is proposing to determine that Reg. 19.602 does not include 

criteria that are sufficiently robust to qualify as an acceptable affirmative defense 

provision. Finally, the provision can be read to provide additional defenses beyond those 

already provided in federal technology-based standards. The EPA believes that 

approvable affirmative defenses in a SIP provision cannot operate to create different or 

additional defenses from those that are provided in underlying federal technology-based 

emission limitations, such as NSPS or NESHAP. For these reasons, the EPA believes that 

Reg. 19.602 is substantially inadequate to meet the fundamental requirements of the 

CAA.

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to Reg. 19.1004(H) and Reg.

19.602. The EPA believes that Reg. 19.1004(H) allows for an exemption from otherwise 

applicable SIP emission limitations and that such exemptions are inconsistent with the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 246 of 322

fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). 

Additionally, the EPA believes that Reg. 19.602 is an impermissible affirmative defense 

provision because it does not explicitly limit the defense to monetary penalties, 

establishes criteria that are inconsistent with those in the EPA's SSM Policy, and can be 

read to create different or additional defenses from those that are provided in underlying 

federal technology-based emission limitations. As a consequence, Reg. 19.602 is also 

inconsistent with CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these

reasons, the EPA is proposing to find that these provisions are substantially inadequate to 

meet CAA requirements and proposes to issue a SIP call with respect to these provisions.

2. Louisiana 

a. Petitioner's Analysis 

The Petitioner objected to several provisions in the Louisiana SIP that allow for 

automatic and discretionary exemptions from SIP emission limitations during various 

situations, including startup, shutdown, maintenance, and malfunctions.156 First, the 

Petitioner objected to provisions that provide automatic exemptions for excess emissions 

of VOC from wastewater tanks (LAC 33:III.2153(B)(1)(i)) and excess emissions of NOx

from certain sources within the Baton Rouge Nonattainment Area (LAC 

33:III.2201(C)(8)).157 The LAC 33:III.2153(B)(1)(i) provides that control devices "shall 

not be required" to meet emission limitations "during periods of malfunction and 

 

156 Petition at 42-43.

157 The EPA interprets the Petitioner’s reference to La. Adm. Code tit. 33, § 

III:2153(B)(1)(i) as a citation to LAC 33:III.2153(B)(1)(i), as approved by the EPA on 

June 20, 2002 (67 FR 41840) (hereinafter referred to as LAC 33:III.2153(B)(1)(i)). 

Similarly, the EPA interprets the Petitioner’s reference to La. Adm. Code tit. 33, § 

III:2201(C)(8) as a citation to LAC 33:III.2201(C)(8), as approved by the EPA on July 5, 

2011 (76 FR 38977) (hereinafter referred to as LAC 33:III.2201(C)(8)).
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 247 of 322

maintenance on the devices for periods not to exceed 336 hours per year." Similarly, 

LAC 33:III.2201(C)(8) provides that certain sources "are exempted" from emission 

limitations "during start-up and shutdown . . . or during a malfunction." The Petitioners 

argued that these provisions are impermissible because the CAA and the EPA's 

interpretation of the CAA in the SSM Policy require that all excess emissions be treated 

as violations. 

Second, the Petitioner objected to provisions that provide discretionary

exemptions to various emission limitations.158 Three of these provisions provide 

discretionary exemptions from otherwise applicable SO2 and visible emission limitations 

in the Louisiana SIP for excess emissions that occur during certain startup and shutdown 

events (LAC 33:III.1107, LAC 33:III.1507(A)(1), LAC 33:III.1507(B)(1)), while the 

other two provide such exemptions for excess emissions from nitric acid plants during 

startups and "upsets" (LAC 33:III.2307(C)(1)(a) and LAC 33:III.2307(C)(2)(a)). For 

example, LAC 33:III.1107, which deals with the control of emissions from flares, states 

that exemptions "may be granted by the administrative authority during startup and 

shutdown periods if the flaring was not the result of failure to maintain and repair 

equipment." The Petitioner argued that this language effectively allows a discretionary 

 

158 The EPA interprets the Petitioner’s reference to La. Adm. Code tit. 33, § III:1107 as a 

citation to LAC 33:III.1107(A), as approved by the EPA on July 5, 2011 (76 FR 38977 

(hereinafter referred to as LAC 33:III.1107(A)). Similarly, the EPA interprets the 

Petitioner’s reference to La. Adm. Code tit. 33, § III:1507(A)(1) and (B)(1) as citations to 

LAC 33:III.1507(A)(1) and (B)(1), as approved by the EPA on July 15, 1993 (58 FR 

38060) (hereinafter referred to as LAC 33:III.1507(A)(1) and (B)(1)). Also, the EPA 

interprets the Petitioner’s reference to La. Adm. Code tit. 33, § III:2307(C)(1)(a) and 

(C)(2)(a) as a citation to LAC 33:III.2307(C)(1)(a) and (C)(2)(a), as approved by the 

EPA on July 5, 2011 (76 FR 38977) (hereinafter referred to as LAC 33:III.2307(C)(1)(a) 

and (C)(2)(a)).
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 248 of 322

decision by a state official to exempt excess emissions during such events and thereby

precludes enforcement by the EPA and citizens for what would otherwise be violations of 

the applicable SIP emission limitations, contrary to the requirements of the CAA.

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions for excess emissions 

from otherwise applicable SIP emission limitations, whether automatic or through the 

exercise of a state official's discretion. In accordance with sections 110(a)(2)(A) and 

302(k), SIPs must contain "emission limitations" and those limitations must be 

continuous. Thus, any excess emissions above the level of the applicable SIP emission 

limitation must be considered a violation of such limitation, regardless of whether the 

state elects to exercise its enforcement discretion. SIP provisions that create exemptions 

such that the excess emissions during startup, shutdown, maintenance, or malfunctions 

are not violations of the applicable SIP emission limitations are inconsistent with the 

fundamental requirements of the CAA.

The first two SIP provisions identified by the Petitioner explicitly state that 

emission limitations for VOC and NOx are either "not required" or "exempted" during 

specified types of SSM events. The EPA believes that such automatic exemptions are 

impermissible under the CAA. By having SIP provisions that define what would 

otherwise be violations of the applicable SIP emission limitations as non-violations, the 

state has effectively negated the ability of the EPA or the public to enforce against those 

violations. Therefore, the EPA believes that the inclusion of such automatic exemptions 

in LAC 33:III.2153(B)(1)(i) and LAC 33:III.2201(C)(8) is a substantial inadequacy that 

renders these SIP provisions impermissible under the CAA. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 249 of 322

The other five provisions identified by the Petitioner all provide the state with the 

discretion to "grant," "authorize," or "extend" exemptions from the otherwise applicable 

SIP emission limitations during various SSM events. The EPA believes that these 

provisions are impermissible as unbounded director's discretion provisions that make a

state official the unilateral arbiter of whether the excess emissions in a given event 

constitute a violation of otherwise applicable SIP emission limitations. More importantly, 

the provisions purport to authorize the state official to create exemptions from applicable 

SIP emission limitations when such exemptions are impermissible in the first instance. 

As discussed in more detail in section VII.A of this notice, these types of director's

discretion provisions undermine the purpose of emission limitations and the reductions 

they are intended to achieve, thereby rendering them less enforceable by the EPA or 

through a citizen suit. The EPA believes that the inclusion of such a director's discretion 

provision in LAC 33:III.1107(A), LAC 33:III.1507(A)(1), LAC 33:III.1507(B)(1), LAC 

33:III.2307(C)(1)(a), and LAC 33:III.2307(C)(2)(a) is therefore a substantial inadequacy

that renders these specific SIP provisions impermissible under the CAA. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to LAC 33:III.2153(B)(1)(i) 

and LAC 33:III.2201(C)(8). The EPA believes that these provisions allow for exemptions 

from otherwise applicable emission limitations and that such exemptions are inconsistent 

with the fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 

302(k). The EPA also proposes to grant the Petition with respect to LAC 33:III.1107(A), 

LAC 33:III.1507(A)(1) & (B)(1), and LAC 33:III.2307(C)(1)(a) & (C)(2)(a). The 

discretion created by these provisions allows for revisions of the applicable SIP emission 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 250 of 322

limitations without meeting the applicable SIP revision requirements of the CAA, and it 

allows case-by-case exemptions from emission limitations when such exemptions are not 

permissible in the first instance. Thus, these provisions are also inconsistent with CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing 

to find that each of these provisions is substantially inadequate to meet CAA 

requirements and proposes to issue a SIP call with respect to these specific provisions.

3. New Mexico 

a. Petitioner's Analysis 

The Petitioner objected to three provisions in the New Mexico SIP that provide 

affirmative defenses for excess emissions that occur during malfunctions (20.2.7.111

NMAC), during startup and shutdown (20.2.7.112 NMAC), and during emergencies 

20.2.7.113 NMAC).159 The Petitioner objected to the inclusion of these provisions in the 

SIP based on its view that affirmative defense provisions are always inconsistent with 

CAA requirements. The Petitioner also argued that each of these affirmative defenses is

generally available to all sources, which is in contravention of the EPA's recommendation 

in the SSM Policy that affirmative defenses should not be available to "a single source or 

groups of sources that has the potential to cause an exceedance of the NAAQS." Finally, 

the Petitioner argued that the affirmative defense provision applicable to emergency

events is impermissible because it was modeled after the EPA's title V regulations, which 

are not meant to apply to SIP provisions. 

 

159 Petition at 54-57. The EPA interprets the Petitioner’s reference to N.M. Code R. §

20.2.7.111, N.M. Code R. § 20.2.7.112, and N.M. Code R. § 20.2.7.113, as citations to 

20.2.7.111 NMAC, 20.2.7.112 NMAC, and 20.2.7.113 NMAC, as approved by the EPA 

on Sept. 14, 2009 (74 FR 46910) (hereinafter referred to as 20.2.7.111 NMAC, 

20.2.7.112 NMAC, and 20.2.7.113 NMAC).
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 251 of 322

b. The EPA's Evaluation 

The EPA disagrees with the Petitioner's contention that no affirmative defense 

provisions are permissible in SIPs under the CAA. As explained in more detail in 

sections IV.B and VII.B of this notice, the EPA interprets the CAA to allow affirmative 

defense provisions for malfunctions. As long as these provisions are narrowly drawn and 

consistent with the CAA, as recommended in the EPA's guidance for affirmative defense 

provisions in SIPs, the EPA believes that states may elect to have affirmative defense 

provisions for malfunctions. By contrast, however, based on evaluation of the legal and 

factual basis for affirmative defenses in SIPs, the EPA now believes that affirmative 

defense provisions are not appropriate in the case of planned source actions, such as 

startup and shutdown, because sources should be expected to comply with applicable 

emission limitations during those normal planned and predicted modes of source 

operation. Again, as explained in sections IV.B and VII.C of this notice, the EPA is 

changing its interpretation of the CAA with respect to affirmative defenses applicable 

during startup and shutdown events. As a result, 20.2.7.112 NMAC, which provides an 

affirmative defense to excess emissions that occur during startup or shutdown, is 

substantially inadequate to meet the requirements of the CAA. 

With respect to the Petitioner's second concern, the EPA agrees that the state's 

inclusion of an affirmative defense for malfunctions that is available to all sources, 

including single sources or groups of sources with the potential to cause exceedances of 

the NAAQS or PSD increments, renders the provision inconsistent with the CAA. As 

explained more fully in section VII.B of this notice, the EPA believes that such 

affirmative defenses may be permissible if either there is no "potential" for exceedances, 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 252 of 322

or alternatively, if the provision requires that the source make an affirmative showing that 

any excess emissions did not in fact cause an exceedance of the NAAQS or PSD 

increments. The EPA has previously approved such provisions as meeting CAA 

requirements on a case-by-case basis in specific actions on SIP submissions. Here, 

however, 20.2.7.111 NMAC is not restricted in application to only those sources that do 

not have the potential to cause an exceedance, nor does it contain any criteria requiring an 

"after the fact" showing that excess emissions from a single source or group of sources 

did not cause an exceedance. Therefore, the provision is substantially inadequate to 

satisfy the CAA and EPA's interpretation of CAA requirements. 

Finally, 20.2.7.113 NMAC provides an affirmative defense for excess emissions 

that occur during emergencies, a concept borrowed from the EPA's title V regulations. 

This provision defines "emergency" conditions that may cause a source to exceed a 

technology-based emission limitation and provides a "complete affirmative defense" to 

an action brought for non-compliance with such limitations if certain criteria are met. The 

20.2.7.113 NMAC is substantially inadequate for three reasons. First, the provision does 

not explicitly limit the affirmative defense to civil penalties. Although the EPA believes 

that narrowly drawn affirmative defenses are permitted under the CAA for malfunction 

events (see sections IV.B and VII.B of this notice), the EPA's interpretation of the CAA 

is that such affirmative defenses can only shield the source from monetary penalties and 

cannot be a bar to injunctive relief. An affirmative defense provision that purports to bar 

any enforcement action for injunctive relief for violations of emission limitations is 

inconsistent with the requirements of CAA sections 113 and 304. Second, the provision 

does not contain elements for establishing the affirmative defense consistent with all of 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 253 of 322

the recommended criteria in the EPA's SSM Policy for SIP provisions. The EPA 

acknowledges that the SSM Policy is only guidance concerning what types of SIP 

provisions could be consistent with the requirements of the CAA. Nonetheless, through 

this rulemaking, the EPA is proposing to determine that 20.2.7.113 NMAC does not 

include criteria that are sufficiently robust to qualify as an acceptable affirmative defense 

provision. Finally, the provision can be read to provide additional defenses beyond those 

already provided in federal technology-based standards. The EPA believes that 

approvable affirmative defenses in a SIP provision cannot operate to create different or 

additional defenses from those that are provided in underlying federal technology-based 

emission limitations, such as NSPS or NESHAP. For these reasons, the EPA believes that 

20.2.7.113 NMAC is impermissible under the CAA.

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to 20.2.7.112 NMAC, which 

includes an affirmative defense applicable during startup and shutdown events that is

contrary to the EPA's interpretation of the CAA. The EPA believes that this provision is 

inconsistent with the fundamental requirements of CAA sections 110(a)(2)(A),

110(a)(2)(C), and 302(k). In addition, this provision is inconsistent with the requirements 

of CAA sections 113 and 304. The EPA also proposes to grant the Petition with respect 

to 20.2.7.111 NMAC, which includes an affirmative defense applicable during 

malfunction events. This provision is inconsistent with the CAA because it neither limits 

the defense to only those sources that do not have the potential to cause exceedances of 

the NAAQS or PSD increments nor does it require sources to make an "after the fact" 

showing that no such exceedances actually occurred. Therefore, the EPA believes that 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 254 of 322

this provision is similarly inconsistent with the fundamental requirements of CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k), and with respect to CAA sections 113 

and 304. Finally, the EPA proposes to grant the Petition with respect to 20.2.7.113

NMAC. The EPA believes that this provision is an impermissible affirmative defense 

because it does not explicitly limit the defense to monetary penalties, it establishes 

criteria that are inconsistent with those in EPA's SSM Policy, and it can be read to create 

different or additional defenses from those that are provided in underlying federal 

technology-based emission limitations. Thus, this provision too is inconsistent with CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k), and with respect to CAA sections 113 

and 304. For these reasons, the EPA is proposing to find that these provisions are 

substantially inadequate to meet CAA requirements and proposes to issue a SIP call with 

respect to these provisions.

4. Oklahoma 

a. Petitioner's Analysis 

The Petitioner objected to two provisions in the Oklahoma SIP that together allow 

for discretionary exemptions from emission limitations during startup, shutdown, 

maintenance, and malfunctions (OAC 252:100-9-3(a) and OAC 252:100-9-3(b)).

160

These provisions state that excess emissions during each of these types of events 

constitute violations of the applicable SIP emission limitations "unless the owner or 

operator of the facility has complied with the notification requirements," which consist of 

 

160 Petition at 61-63. The EPA interprets the Petitioner’s reference to Okla. Admin. Code 

§ 252:100-9-3(a) and Okla. Admin. Code § 252:100-9-3(b) as citations to OAC 252:100-

9-3(a) and OAC 252:100-9-3(b), as approved by the EPA on Nov. 3, 1999 (64 FR 59629) 

(hereinafter referred to as OAC 252:100-9-3(a) and (3)(b)).
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 255 of 322

a demonstration to the Director of the Air Quality Division that at least one of several 

criteria have been met. One example of the criteria includes a demonstration that the 

excess emissions resulted from "either malfunction or damage to the air pollution control 

or process equipment" or "scheduled maintenance." The Petitioner argued that these 

provisions empower the director to excuse violations entirely and thereby preclude 

enforcement by the EPA or citizens. Specifically, if an owner or operator satisfies the 

director that the regulatory criteria under section 3(b) have been met, then the language of 

section 3(a) creates an exemption for the source and strongly implies that the excess 

emissions are not a violation of the applicable SIP emission limitations. Therefore, the 

Petitioner argued that these provisions are inconsistent with the requirements of the CAA. 

b. The EPA's Evaluation 

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, even where the exemption is only available at the 

exercise of a state official's discretion. In accordance with sections 110(a)(2)(A) and 

302(k), SIPs must contain "emission limitations" and those limitations must be 

continuous. Thus, any excess emissions above the level of the applicable SIP emission 

limitations must be considered a violation of such limitations, regardless of whether the 

state elects to exercise its enforcement discretion. SIP provisions that create exemptions 

such that the excess emissions during startup, shutdown, malfunctions, or maintenance

are not violations of the applicable emission limitations are inconsistent with the 

fundamental requirements of the CAA.

The provisions identified by the Petitioner state that excess emissions during SSM 

events constitute violations "unless" the Director of the Air Quality Division provides an 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 256 of 322

exemption. The EPA believes that OAC 252:100-9-3(a) and OAC 252:100-9-3(b) are 

impermissible, because they are unbounded director's discretion provisions that purport to 

make a state official the unilateral arbiter of whether the excess emissions in a given 

event constitute a violation. The provisions authorize the state official to create 

exemptions from applicable SIP emission limitations on a case-by-case basis when such 

exemptions are impermissible in the first instance. These types of director's discretion 

provisions undermine the purpose of emission limitations, and the reductions they are 

intended to achieve, thereby rendering them less enforceable by the EPA or through a 

citizen suit. The EPA believes that the inclusion of such a director's discretion provision 

in OAC 252:100-9-3(a) and OAC 252:100-9-3(b) is therefore a substantial inadequacy

and renders these SIP provisions impermissible. 

The EPA further notes that the provision allowing exemptions for excess 

emissions that occur during scheduled maintenance is inconsistent with CAA 

requirements for the reason that maintenance is a normal mode of source operation, 

during which sources should be expected to meet applicable SIP emission limitations. 

Since the 1983 SSM Guidance, the EPA has indicated its view that excess emissions that 

occur during maintenance should not be excused. Similarly, in the 1999 SSM Guidance, 

the EPA did not recommend any affirmative defense for excess emissions that occur 

during maintenance. In this action, the EPA is reiterating its view that the CAA does not 

permit exemptions or affirmative defenses for excess emissions that occur during such 

planned events. 

c. The EPA's Proposal 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 257 of 322

The EPA proposes to grant the Petition with respect to OAC 252:100-9-3(a) and 

OAC 252:100-9-3(b).161 The discretion created by these provisions allows for revisions 

of the applicable SIP emission limitations without meeting the applicable SIP revision 

requirements of the CAA, and it allows case-by-case exemptions from emission

limitations when such exemptions are not permissible in the first instance. As a result, 

these provisions are inconsistent with the fundamental requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). Therefore, the EPA is proposing to find that 

these provisions are substantially inadequate to meet CAA requirements and proposes to 

issue a SIP call with respect to these provisions.

H. Affected States in EPA Region VII

1. Iowa 

a. Petitioner's Analysis

The Petitioner first objected to a specific provision in the Iowa SIP that allows for 

automatic exemptions from otherwise applicable SIP emission limitations during periods 

of startup, shutdown, or cleaning of control equipment (Iowa Admin. Code r. 567-

24.1(1)).162 The Petitioner noted that Iowa Admin. Code r. 567-24.1(1) provides that 

excess emissions from these periods are not violations of the emissions standard "if the 

startup, shutdown or cleaning is accomplished expeditiously and in a manner consistent 

with good practice for minimizing emissions." The Petitioner argued that such 

 

161 The EPA notes that on July 16, 2010, Oklahoma submitted a SIP revision that would 

remove OAC 252:100-9-3(a) and OAC 252:100-9-3(b) and replace them with affirmative 

defense provisions. In this action, the EPA is only evaluating these provisions as they are 

currently found in the EPA-approved Oklahoma SIP. The EPA is not evaluating the July

16, 2010 SIP revision as part of this action. The EPA will address the July 16, 2010 SIP 

revision in a later action. 

162 Petition at 37-38. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 258 of 322

exemptions are inconsistent with the requirements of the CAA and the EPA's SSM 

Policy. The Petitioner argued that the CAA and the EPA's interpretation of the CAA in 

the SSM Policy require that all such excess emissions be treated as violations. 

Second, the Petitioner objected to a provision that empowers the state to exercise

enforcement discretion for violations of the otherwise applicable SIP emission limitations 

during malfunction periods (Iowa Admin. Code r. 567-24.1(4)).163 The Petitioner noted 

that this provision—which states that "[d]etermination of any subsequent enforcement 

action will be made following review of [a] report" (emphasis added by Petitioner) 

submitted by the owner or operator of the source demonstrating certain conditions—

could be interpreted to mean that "no enforcement is warranted at all, by anyone."164 The 

Petitioner argued that such an interpretation of this provision could preclude enforcement 

by the EPA or citizens, both for civil penalties and injunctive relief, and that the EPA's 

interpretation of the CAA would forbid such a provision. The Petitioner thus requested 

that Iowa revise this provision to eliminate any confusion that a decision by Iowa state 

personnel not to enforce against a violation would in any way foreclose enforcement by 

the EPA or citizens. 

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations. In accordance with the requirements of CAA section 

110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the 

definition of "emission limitations" in CAA section 302(k), such emission limitations 

 

163 Petition at 37-38.

164 Petition at 38.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 259 of 322

must be continuous. Thus, any excess emissions above the level of the applicable 

emission limitation must be considered violations, whether or not the state elects to 

exercise its enforcement discretion. SIP provisions that create exemptions such that 

excess emissions during startup, shutdown, or control equipment cleaning are not 

violations are inconsistent with the fundamental requirements of the CAA with respect to 

emission limitations in SIPs. The first provision identified by the Petitioner explicitly

states that excess emission during periods of startup, shutdown, and cleaning of control 

equipment "is not a violation," contrary to the requirements of the CAA. The EPA 

believes that the inclusion of such an exemption from otherwise applicable SIP emission 

limitations in Iowa Admin. Code r. 567-24.1(1) is thus a substantial inadequacy and 

renders this specific SIP provision impermissible. 

The EPA notes that these exemptions are impermissible even though the state has 

imposed some factual limitations on their potential scope. In Iowa Admin. Code r. 567-

24.1(1), the state has conditioned the exemption for excess emissions during periods of 

startup, shutdown, or cleaning of control equipment, requiring that such activities be 

"accomplished expeditiously and in a manner consistent with good practice for 

minimizing emissions." Although this limitation on the scope of the exemptions is a 

helpful feature, the core problem remains that the provision provides impermissible 

exemptions from the otherwise applicable SIP emission limitations by defining the excess 

emission as "not a violation." Such provisions are impermissible under the CAA because 

the state has effectively negated the ability of the EPA or through a citizen suit to enforce 

against those violations. 

However, the EPA disagrees with Petitioner that Iowa Admin. Code r. 567-
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 260 of 322

24.1(4) is impermissible under the CAA. The EPA believes that this provision is 

permissible because it defines parameters for the exercise of enforcement discretion by

state personnel for violations of emission limitations during malfunctions. According to 

the EPA's SSM Policy interpreting the CAA, as discussed in section IX.A of this notice, a 

state has authority to have a SIP provision that pertains to the exercise of enforcement 

discretion concerning actions taken by state personnel. The provision at issue clearly

states that any excess emission during malfunction "is a violation." The rule also 

delineates factors that will be considered by state personnel in determining whether to 

pursue enforcement for those regulatory violations that are due to excess emissions 

during malfunctions. The listing of these factors does not alter the statement that excess 

emissions are violations under the Iowa regulations. The provisions that describe the 

factors to be considered by state personnel only require that the state personnel consider 

such factors. The regulations do not state or imply that if a source makes an appropriate 

showing of meeting the factors, it is exempt from penalties or injunctive relief. The 

provision does not state or imply that any other entity, including the EPA or a member of 

the public, is precluded from taking an enforcement action if the state exercises its 

discretion not to enforce violations of the emission limitations during malfunctions. Iowa 

Admin. Code r. 567-24.1(4) expressly identifies excess emissions described in the rule as 

violations and allows for the exercise of enforcement discretion in addressing 

malfunctions. This is consistent with the CAA and the EPA's SSM Policy and therefore 

does not render the SIP provision substantially inadequate. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to Iowa Admin. Code. R. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 261 of 322

567-24.1(1). The EPA believes that this provision allows for exemptions from the 

otherwise applicable SIP emission limitations, and that such exemptions are inconsistent 

with the fundamental requirements of the CAA with respect to emission limitations in 

SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For this reason, the 

EPA is proposing to find that Iowa Admin. Code. R. 567-24.1(1) is substantially

inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect 

to this provision. 

The EPA proposes to deny the Petition with respect to Iowa Admin. Code r. 567-

24.1(4). The EPA believes that the provision is on its face clearly applicable only to Iowa 

state enforcement personnel and that the provision could not reasonably be read by a 

court to foreclose enforcement by the EPA or through a citizen suit where Iowa state 

personnel elect to exercise enforcement discretion. The EPA solicits comments on this 

issue, in particular from the State of Iowa, to assure that there is no misunderstanding 

with respect to the correct interpretation of Iowa Admin. Code r. 567-24.1(4). 

2. Kansas 

a. Petitioner's Analysis

The Petitioner objected to three provisions in the Kansas SIP that allow for 

exemptions for excess emissions during malfunctions and necessary repairs (K.A.R. § 28-

19-11(A)), scheduled maintenance (K.A.R. § 28-19-11(B)), and certain routine modes of 

operation (K.A.R. § 28-19-11(C)).165 The Petitioner objected because all three of these 

provisions "state that excess emissions are not violations (or are permitted),"166 contrary

 

165 Petition at 38-39.

166 Petition at 39.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 262 of 322

to the fundamental requirement of the CAA that all excess emissions be considered 

violations. The Petitioner argued that all three of these provisions would thus appear 

impermissibly to preclude enforcement by the EPA or citizens for the excess emissions 

that would otherwise be violations. 

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitation must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. SIP provisions that create exemptions such that the excess 

emissions during malfunctions, necessary repairs, and routine modes of operation are not 

violations of the applicable emission limitations are inconsistent with the fundamental 

requirements of the CAA with respect to emission limitations in SIPs. Two of the 

provisions identified by the Petitioner explicitly state that excess emissions under certain 

circumstances will "not be deemed violations," which is contrary to the requirements of 

the CAA. The EPA believes that the inclusion of such exemptions from the emission 

limitations in K.A.R. § 28-19-11(A) and the first part of K.A.R. § 28-19-11(C) is thus a 

substantial inadequacy and renders these specific SIP provisions impermissible. 

The EPA notes that these exemptions are impermissible even though the state has 

imposed some factual and temporal limitations on their potential scope. For example, in 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 263 of 322

K.A.R. § 28-19-11(A), the state has specified that excess emissions during malfunctions 

or necessary repairs "shall not be deemed violations provided that: (1) The person 

responsible ... notifies the department of the occurrence and nature of such malfunctions, 

breakdowns, or repairs, in writing, within ten (10) days of noted occurrence." Similarly, 

in the first part of K.A.R. § 28-19-11(C) with respect to "[e]xcessive contaminant 

emission from fuel burning equipment used for indirect heating purposes resulting from 

fuel or load changes, start up, soot blowing, cleaning of fires, and rapping of 

precipitators," the state has made the exemption available only in such events that "do not 

exceed a period or periods aggregating more than five (5) minutes during any consecutive 

one (1) hour period." Although these extra limitations on the scope of the exemptions are 

helpful features, the core problem remains that both of the provisions provide 

impermissible exemptions from the emission limitations by defining the excess emissions 

as non-violations. 

The EPA believes that both K.A.R. § 28-19-11(B) and the second part of K.A.R. 

§ 28-19-11(C) are impermissible as unbounded director's discretion provisions that 

purport to make a state official the unilateral arbiter of whether the excess emissions in a 

given event constitute a violation. In the case of K.A.R. § 28-19-11(B), the provision 

authorizes a state official unilaterally to grant "prior approval" to permit "[e]missions in 

excess of the limitations specified in these emission control regulations resulting from 

scheduled maintenance of control equipment and appurtenances." The provision vests the 

state official with unilateral power to grant an exemption from the otherwise applicable 

emission limitation, without any public process at the state or federal level. By deciding 

that an exceedance of the emission limitation is "permitted," exercise of this discretion 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 264 of 322

could preclude enforcement by the EPA or through a citizen suit. K.A.R. § 28-19-11(B) 

does contain a requirement that the source establish that it was not possible for the 

scheduled maintenance to occur during periods of shutdown but nevertheless empowers 

the state official to create an exemption from the emission limitation, and such an 

exemption is impermissible in the first instance. Such a director's discretion provision 

undermines the emission limitations in the SIP, and the emissions reductions they are 

intended to achieve, and renders them less enforceable by the EPA or through a citizen

suit. 

Similarly, the EPA believes that the second part of K.A.R. § 28-19-11(C) is 

impermissible because it allows a state official unilaterally to "authorize, upon request of 

the operator, an adjusted time schedule for permitting ... excessive emissions" if the 

source can demonstrate that the period of "fuel or load changes, start up, soot blowing, 

cleaning of fires, and rapping of precipitators" is required to extend longer than the five 

minutes during a consecutive one-hour period allowed by the first part of K.A.R. § 28-

19-11(C). Because the K.A.R. § 28-19-11(C) grant of an automatic exemption of excess 

emissions during these events is impermissible in the first instance, the provision's 

authorization of the state official to extend the period of exemption for an even longer 

period upon request from a source is also impermissible. Moreover, the provision permits 

the state official to extend the time period of exemption without any additional public 

process at the state or federal level. This discretion authorizes the creation of an extended 

exemption on a case-by-case basis, where the exemption is not permissible in the first 

instance. Thus, this provision undermines the SIP emission limitations, and the emissions 

reductions they are intended to achieve, and renders them less enforceable by the EPA or 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 265 of 322

through a citizen suit. The EPA believes that the inclusion of director's discretion 

provisions in K.A.R. § 28-19-11(B) and K.A.R. § 28-19-11(C) is thus a substantial 

inadequacy and renders these specific SIP provisions impermissible for this reason. 

The EPA notes that K.A.R. § 28-19-11(C) does condition the state official's 

authorization of an extended time period in which excess emissions are not considered 

violations upon a source limiting "visible emissions" to not exceed 60 percent opacity. 

The CAA does, as discussed in section VII.A of this notice, permit states to develop 

alternative emission limitations or other forms of enforceable control measures or 

techniques that apply during startup or shutdown. The EPA believes that emission 

limitations in SIPs should generally be developed in the first instance to account for the 

types of normal operation outlined in K.A.R. § 28-19-11(C), such as cleaning and soot 

blowing. K.A.R. § 28-19-11(C) does not appear to comply with the Act's requirements as 

interpreted in the EPA's SSM Policy in a number of respects. The provision's exemptions 

apply to all SIP emission limitations, and the alternative limitation in K.A.R. § 28-19-

11(C) restricts only visible emissions and thus, at best, is an alternative emission 

limitation only for particulate matter. In addition, such alternative emission limitations 

must be developed in consultation with the EPA and must be narrowly drawn to apply to 

small groups of sources using specific types of control strategy. To the extent that the 

requirement limiting the opacity of visible emissions during periods of fuel or load 

changes, start up, soot blowing, cleaning of fires, and rapping of precipitators in K.A.R. § 

28-19-11(C) was intended to function as an alternative emission limitation rather than as 

an exemption granted at the state official's discretion from the otherwise applicable SIP 

emission limitations, the terms of the alternative limitation are substantially inadequate 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 266 of 322

and do not render this specific SIP provision permissible under the CAA. 

With respect to the Petitioner's concern that the challenged exemptions preclude 

enforcement by the EPA or citizens, the EPA agrees that this is one of the critical reasons 

why such provisions are impermissible under the CAA. By having SIP provisions that 

automatically exempt or allow state officials to define what would otherwise be 

violations of the applicable SIP emission limitations as non-violations, the state has 

effectively negated the ability of the EPA or the public to enforce against those 

violations. 

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to K.A.R. § 28-19-11(A) and 

the first part of K.A.R. § 28-19-11(C). The EPA believes that both of these provisions 

allow for automatic exemptions from the otherwise applicable emission limitations, and 

that such outright exemptions are inconsistent with the fundamental requirements of the 

CAA with respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 

110(a)(2)(C), and 302(k). In addition, by creating these impermissible exemptions, the 

state has defined violations in a way that would interfere with effective enforcement by 

the EPA and citizens for excess emissions during these events as provided in CAA 

sections 113 and 304. 

The EPA also proposes to grant the Petition with respect to K.A.R. § 28-19-11(B) 

and the second part of K.A.R. § 28-19-11(C). The EPA believes both allow for 

exemptions from otherwise applicable emission limitations through a state official's 

unilateral exercise of discretionary authority that is insufficiently bounded and includes 

no additional public process at the state or federal level. Such provisions are inconsistent 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 267 of 322

with the fundamental requirements of the CAA with respect to SIPs and SIP revisions. 

Moreover, the requirement that visible emissions not exceed 60-percent opacity during 

the periods of operation specified in K.A.R. § 28-19-11(C) is not a permissible alternative 

emission limitation under the EPA's SSM Policy interpreting the CAA. 

For these reasons, the EPA is proposing to find that K.A.R. § 28-19-11(A), 

K.A.R. § 28-19-11(B), and K.A.R. § 28-19-11(C) are substantially inadequate to meet 

CAA requirements and thus is proposing to issue a SIP call with respect to these 

provisions. 

3. Missouri 

a. Petitioner's Analysis

The Petitioner objected to two provisions in the Missouri SIP that could be 

interpreted to provide discretionary exemptions. 167,168 The first provides exemptions for 

visible emissions exceeding otherwise applicable SIP opacity limitations (Mo. Code 

Regs. Ann. tit 10, § 10-6.220(3)(C)). The second provides authorization to state 

 

167 Petition at 49-50. 

168 The EPA notes that the Petitioner also identified additional provisions Mo. Code 

Regs. Ann. tit 10, § 10-6.200(3)(E)(1), Mo. Code Regs. Ann. tit 10, § 10-

6.200(3)(E)(3)(C)(I), Mo. Code Regs. Ann. tit 10, § 10-6.200(3)(E)(4)(B), Mo. Code 

Regs. Ann. tit 10, § 10-6.200(3)(E)(5)(E), Mo. Code Regs. Ann. tit 10, § 10-

6.200(3)(E)(6)(F), Mo. Code Regs. Ann. tit 10, § 10-6.200(3)(E)(7)(E), Mo. Code Regs. 

Ann. tit 10, § 10-6.200(3)(E)(11)(C), which provide for exemptions to HMIWIs, that it 

alleged are inconsistent with the CAA and the EPA's SSM Policy. However, the 

Petitioner did not request that the EPA address these provisions in its remedy request, and 

thus the EPA is not addressing these provisions in this action. (This is in contrast to the 

case of a similar HMIWI provision in Nebraska for which the Petition did specifically 

make such a request.) The EPA further notes that the provisions enumerated above are

not part of Missouri's SIP but were approved as part of the separate state plan to meet the 

applicable emissions guidelines under CAA § 111(d) and 40 CFR Part 60. Therefore, a 

SIP call is not appropriate. The EPA may elect to evaluate these provisions in a later 

action.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 268 of 322

personnel to decide whether excess emissions "warrant enforcement action" where a 

source submits information to the state showing that such emissions were "the 

consequence of a malfunction, start-up or shutdown." (Mo. Code Regs. Ann. tit 10, § 10-

6.050(3)(C)). The Petitioner argued that Mo. Code Regs. Ann. tit 10, § 10-6.050(3)(C) 

"clearly gives the director the authority to decide whether excess emissions occurred 

during a malfunction, start-up, or shutdown, and whether they 'warrant enforcement 

action.'"169 According to the Petitioner, the provision could be interpreted to decide that 

enforcement is not warranted by anybody, which could preclude action by the EPA and 

citizens for both civil penalties and injunctive relief, and such an interpretation is 

inconsistent with the CAA and the EPA's SSM policy interpreting the CAA. Similarly, 

the Petitioner argued that Mo. Code Regs. Ann. tit 10, § 10-6.220(3)(C) could be 

construed to empower the director to preclude enforcement by the EPA and citizens. The 

Petitioner noted that the CAA and the EPA's SSM policy forbid such provisions if they

would purport to preclude enforcement by the EPA or citizens. 

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of section 110(a)(2)(A), SIPs 

must contain emission limitations and, in accordance with the definition of "emission 

limitations" in CAA section 302(k), such emission limitations must be continuous. Thus, 

any excess emissions above the level of the applicable emission limitations must be 

considered violations, whether or not the state elects to exercise its enforcement 

 

169 Petition at 50.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 269 of 322

discretion. 

The EPA believes that Mo. Code Regs. Ann. tit 10, § 10-6.220(3)(C) is 

impermissible as an insufficiently bounded director's discretion provision. The provision 

states that "[v]isible emissions over the limitations . . . of this rule are in violation of this 

rule unless the director determines that the excess emissions do not warrant enforcement 

action based on data submitted" by sources regarding startup, shutdown, and malfunction 

events. This provision could be read to mean that once the state official has determined 

that excess visible emissions do not warrant enforcement action, those excess emissions 

are not violations. Such an interpretation would make the state official the unilateral 

arbiter of whether the excess emissions in a given event constitute a violation, which 

could preclude enforcement by the EPA or the public who might disagree about whether 

enforcement action is warranted. Most importantly, however, the provision may be read 

to authorize the state official to create an exemption from the emission limitation, and 

such an exemption is impermissible in the first instance. The EPA believes that the 

inclusion of an insufficiently bounded director's discretion provision in Mo. Code Regs. 

Ann. tit 10, § 10-6.220(3)(C) is thus a substantial inadequacy and renders this specific 

SIP provision impermissible for this reason. 

The EPA believes that Mo. Code Regs. Ann. tit 10, § 10-6.050(3)(C) is 

permissible because it defines parameters for the exercise of enforcement discretion by

state personnel for violations of emission limitations. According to the EPA's SSM 

Policy, as discussed in section IX.A of this notice, a state has authority to have a SIP 

provision that pertains to the exercise of enforcement discretion concerning actions taken 

by state personnel. The provision only maintains that state enforcement personnel "shall 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 270 of 322

consider" certain factors in determining whether to take an enforcement action under the 

state statutory enforcement provisions. The regulations do not state or imply that if a 

source makes an appropriate showing it is exempt from penalties or injunctive relief. The 

provisions that describe the factors to be considered by a state official only state that the 

official will consider such factors. The provision does not state or imply that any other 

entity, including the EPA or a member of the public, is precluded from taking an 

enforcement action if the state exercises its discretion not to pursue enforcement. The 

EPA believes that Mo. Code Regs. Ann. tit 10, § 10-6.050(3)(C) is consistent with the 

CAA and the EPA's SSM Policy and therefore does not render the SIP provision 

substantially inadequate.

c. The EPA's Proposal

The EPA proposes to grant the Petition with respect to Mo. Code Regs. Ann. tit 

10, § 10-6.220(3)(C). The EPA believes that this provision could be read to allow for 

exemptions from the otherwise applicable SIP emission limitations through a state 

official's unilateral exercise of discretionary authority that is insufficiently bounded and 

includes no additional public process at the state or federal level. Such a provision is 

inconsistent with the fundamental requirements of the CAA with respect to SIPs as 

required by sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA 

is proposing to find Mo. Code Regs. Ann. tit 10, § 10-6.220(3)(C) is substantially

inadequate to meet CAA requirements and thus is proposing to issue a SIP call with 

respect to this provision. 

The EPA proposes to deny the Petition with respect to Mo. Code Regs. Ann. tit 

10, § 10-6.050(3)(C). The EPA believes that the provision is on its face clearly applicable 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 271 of 322

only to Missouri state enforcement personnel and that the provision could not reasonably 

be read by a court to foreclose enforcement by the EPA or through a citizen suit where 

Missouri state personnel elect to exercise enforcement discretion. The EPA solicits 

comments on this issue, in particular from the State of Missouri, to assure that there is no 

misunderstanding with respect to the correct interpretation of Mo. Code Regs. Ann. tit 

10, § 10-6.050(3)(C). 

4. Nebraska 

a. Petitioner's Analysis

The Petitioner objected to two provisions in the Nebraska SIP.170 First, the 

Petitioner objected to a generally applicable provision that provides authorization to state 

personnel to decide whether excess emissions "warrant enforcement action" where a 

source submits information to the state showing that such emissions were "the result of a 

malfunction, start-up or shutdown" (Neb. Admin. Code Title 129 § 11-35.001). The 

Petitioner argued that this provision "clearly gives the Director the authority to decide 

whether excess emission occurred during a malfunction, startup or shutdown, and 

whether they 'warrant enforcement action.'"171 According to the Petitioner, the provision 

could be interpreted to give a state official the authority to decide that enforcement is not 

warranted by anybody, which could preclude action by the EPA and citizens for both 

civil penalties and injunctive relief, and such an interpretation is inconsistent with the 

CAA and the EPA's SSM policy interpreting the CAA. The Petitioner thus requested that 

Nebraska revise the provision to eliminate any confusion that a decision by state 

 

170 Petition at 51. 

171 Petition at 51.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 272 of 322

personnel not to enforce against a violation would in any way foreclose enforcement by 

the EPA or citizens. 

Second, the Petitioner objected to a specific provision in Nebraska state law that 

contains exemptions for excess emissions at HMIWI during startup, shutdown, and 

malfunction (Neb. Admin. Code Title 129 § 18-004.02). The Petitioner requested that 

these exemptions be removed entirely from Nebraska's SIP. 

b. The EPA's Evaluation

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), 

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitations must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. 

The EPA believes that Neb. Admin. Code Title 129 § 11-35.001 is permissible 

because it defines parameters for the exercise of enforcement discretion by state 

personnel for violations of emission limitations. According to the EPA's SSM Policy, as 

discussed in section IX.A of this notice, a state has authority to have a SIP provision that 

pertains to the exercise enforcement discretion concerning actions taken by state 

personnel. The provision in question maintains that state enforcement personnel "shall 

consider" certain factors in determining whether to take an enforcement action under the 

state statutory enforcement provisions. The regulation does not expressly or implicitly
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 273 of 322

place any limits on the state personnel's ability to exercise discretion, and the 

enforcement discretion provided by this regulation is not an exemption to the SIP 

emission limitations. The provision does not state or imply that any other entity, 

including the EPA or a member of the public, is precluded from taking enforcement 

action if the state exercises its discretion not to pursue enforcement. The EPA believes 

that Neb. Admin. Code Title 129 § 11-35.001 is consistent with the CAA and the EPA's 

SSM Policy and therefore does not render the SIP substantially inadequate. 

The EPA disagrees that the provisions providing exemptions for HMIWI must be 

removed from the SIP. Nebraska Admin. Code Title 129 § 18-004.02 was not approved 

into Nebraska's SIP, but rather it was approved as part of the separate state plan to meet 

the applicable emissions guidelines under CAA § 111(d) and 40 CFR Part 60. Because 

that rule is not in the Nebraska SIP is not related to any provisions in the SIP, it does not 

represent an inadequacy in the SIP. 

c. The EPA's Proposal

The EPA proposes to deny the Petition with respect to Neb. Admin. Code Title 

129 § 11-35.001. The EPA believes that this provision is on its face clearly applicable 

only to Nebraska state enforcement personnel and that the provision could not reasonably 

be read by a court to foreclose enforcement by the EPA or through a citizen suit where 

personnel from Nebraska elect to exercise enforcement discretion. The EPA solicits 

comments on this issue, in particular from the State of Nebraska, to assure that there is no 

misunderstanding with respect to the correct interpretation of this provision. 

The EPA proposes to deny the Petition with respect to Neb. Admin. Code Title 

129 § 18-004.02. This regulation is not part of the Nebraska SIP and thus cannot 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 274 of 322

represent an inadequacy in the SIP. 

5. Nebraska: Lincoln-Lancaster 

a. Petitioner's Analysis

The Petitioner objected to a generally applicable provision in the LincolnLancaster County Air Pollution Control Program (Art. 2 § 35), which governs the 

Lincoln-Lancaster County Air Pollution Control District of Nebraska, that is parallel "in 

all aspects pertinent to this analysis" to Neb. Admin. Code Title 129 § 11-35.001.172 The 

Lincoln-Lancaster County provision provides authorization to local personnel to decide 

whether excess emissions "warrant enforcement action" where a source submits 

information to the county showing that such emissions were "the result of a malfunction, 

start-up or shutdown." The Petitioner argued that this provision "clearly gives the 

Director the authority to decide whether excess emission occurred during a malfunction, 

startup or shutdown, and whether they 'warrant enforcement action.'"173 According to the 

Petitioner, the provision could be interpreted to decide that enforcement is not warranted 

by anybody, which could preclude action by the EPA and citizens for both civil penalties 

and injunctive relief, and such an interpretation is inconsistent with the CAA and the 

EPA's SSM Policy interpreting the CAA. The Petitioner thus requested that Nebraska or 

Lincoln-Lancaster County revise the provision to eliminate any confusion that a decision 

by local personnel not to enforce against a violation would in any way foreclose 

enforcement by the EPA or citizens. 

b. The EPA's Evaluation

 

172 Petition at 51-52. 

173 Petition at 52.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 275 of 322

The EPA agrees that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations, whether automatic or through the exercise of a state 

official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A),

SIPs must contain emission limitations and, in accordance with the definition of 

"emission limitations" in CAA section 302(k), such emission limitations must be 

continuous. Thus, any excess emissions above the level of the applicable emission 

limitations must be considered violations, whether or not the state elects to exercise its 

enforcement discretion. 

The EPA believes that Lincoln-Lancaster County Air Pollution Control Program, 

Art. 2 § 35 is permissible because it defines parameters for the exercise of enforcement 

discretion by local personnel for violations of emission limitations. According to the 

EPA's SSM Policy, as discussed in section IX.A of this notice, a state has authority to 

have a SIP provision that pertains to the exercise enforcement discretion concerning 

actions taken by state personnel. The provision in question maintains that local 

enforcement personnel "shall consider" certain factors in determining whether to take an 

enforcement action under the local statutory enforcement provisions. The regulation does 

not expressly or implicitly place any limits on the local personnel's ability to exercise 

discretion, and the enforcement discretion provided by the regulation is not an exemption 

to the SIP emission limitations. The provision does not state or imply that any other 

entity, including the EPA or a member of the public, is precluded from taking 

enforcement action if the county exercises its discretion not to pursue enforcement. The 

EPA believes that Lincoln-Lancaster County Air Pollution Control Program, Art. 2 § 35 

is consistent with the CAA and EPA's SSM Policy and therefore does not render the SIP 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 276 of 322

substantially inadequate. 

c. The EPA's Proposal

The EPA proposes to deny the Petition with respect to Lincoln-Lancaster County

Air Pollution Control Program, Art. 2 § 35. The EPA believes that this provision is on its 

face clearly applicable only to Lincoln-Lancaster County enforcement personnel and that 

the provision could not reasonably be read by a court to foreclose enforcement by the 

EPA or through a citizen suit where personnel from Lincoln-Lancaster County elect to 

exercise enforcement discretion. The EPA solicits comments on this issue, in particular 

from the State of Nebraska and from the Lincoln-Lancaster County Air Pollution Control

Program, to assure that there is no misunderstanding with respect to the correct 

interpretation of this provision. 

I. Affected States in EPA Region VIII 

1. Colorado 

a. Petitioner's Analysis 

The Petitioner objected to two affirmative defense provisions in the Colorado SIP 

that provide for affirmative defenses to qualifying sources during malfunctions (5 Colo. 

Code Regs § 1001-2(II.E)) and during periods of startup and shutdown (5 Colo. Code 

Regs § 1001-2(II.J)).174 The Petitioner acknowledged that this state has correctly revised 

its SIP in important ways in order to be consistent with CAA requirements, as interpreted 

in the EPA's SSM Policy, including providing affirmative defense provisions that are 

limited to monetary penalties, that do not apply in actions to enforce federal standards 

such as NSPS or NESHAP approved into the SIP, and that meet "almost word for word"

 

174 Petition at 25-27. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 277 of 322

the recommendations of the 1999 SSM Guidance. Nevertheless, the Petitioner had two 

concerns with these SIP provisions. 

First, the Petitioner objected to both of these provisions based on its assertion that 

the CAA allows no affirmative defense provisions in SIPs. Second, the Petitioner asserted 

that even if affirmative defense provisions were permissible under the CAA, the state had 

properly followed EPA guidance in the affirmative defense provision applicable to 

startup and shutdown events but failed to do so in the affirmative defense provision 

applicable to malfunctions. Specifically, the Petitioner argued that the EPA's own 

guidance for affirmative defenses recommended that they "are not appropriate where a 

single source or a small group of sources has the potential to cause an exceedance of the 

NAAQS or PSD increments."

175 Instead, the state's affirmative defense for malfunction 

events is potentially available to any source, if it can establish that the excess emissions 

during the event did not result in exceedances of ambient air quality standards that could 

be attributed to the source.176 The Petitioner objected to this as not merely inconsistent 

with the EPA's 1999 SSM Guidance but an approach "that does not have the same 

deterrent effect" on sources and that would not have the same effects on sources to assure 

that they comply at all times in order to avoid violations. As a practical matter, the 

Petitioner also argued that including this element to the affirmative defense could "mire 

enforcement proceedings in the question of whether or not the NAAQS or PSD 

increments were exceeded as a matter of fact." 

b. The EPA's Evaluation 

 

175 Id. at 25. 

176 See, 5 Colo. Code Regs §1001-2(II.E.1.j). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 278 of 322

The EPA disagrees with the Petitioner's contention that no affirmative defense 

provisions are permissible in SIPs under the CAA. As explained in more detail in section 

IV.B of this notice, the EPA interprets the CAA to allow affirmative defense provisions 

for malfunctions. So long as these provisions are narrowly drawn and consistent with the 

CAA, as recommended in the EPA's guidance for affirmative defense provisions in SIPs, 

the EPA believes that states may elect to have affirmative defense provisions for 

malfunctions. However, based on evaluation of the legal and factual basis for affirmative 

defenses in SIPs, the EPA now believes that affirmative defense provisions are not 

appropriate in the case of planned source actions, such as startup and shutdown, because 

sources should be expected to comply with applicable emission limitations during those 

normal planned and predicted modes of source operation. Again, as explained in section 

IV.B of this notice, the EPA is changing its interpretation with respect to affirmative 

defenses for startup and shutdown. The EPA acknowledges that at the time of its 

approval of 5 Colo. Code Regs § 1001-2(II.J) into the SIP in 2006, the state had complied 

with the EPA's then-applicable interpretation of the CAA and had worked with the EPA 

to develop that provision.177 However, based on further consideration of this issue 

prompted by the Petition, the EPA is revising its SSM Policy to interpret the CAA to 

allow affirmative defenses only in the case of events that are beyond the control of the 

source, i.e., malfunctions. 

With respect to the Petitioner's second concern, the EPA disagrees that the state's 

inclusion of an affirmative defense available to all sources, including single sources or 

 

177 See, "Approval and Disapproval and Promulgation of Colorado Affirmative Defense 

Provisions for Startup and Shutdown," 71 FR 8958 (Feb. 22, 2006). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 279 of 322

groups of sources with the "potential" to cause exceedances of the NAAQS or PSD 

increments, renders the provision inconsistent with the CAA. The EPA's 

recommendations for appropriate criteria for affirmative defenses in the SSM Policy are 

guidance, and as guidance, the EPA believes that there can be facts and circumstances in 

which a state may elect to develop a SIP provision with somewhat different criteria, so 

long as they still meet the same statutory objectives. Conditioning the affirmative defense 

on a factual showing that there was no actual violation of air standards attributable to the 

excess emissions during the malfunction is an acceptable alternative means to the same 

end. For example, instead of providing no affirmative defense to sources with this 

"potential" for these impacts on air quality, the state could provide the affirmative 

defense to sources on the condition that the source must be able to demonstrate that the 

excess emissions did not have these impacts. The EPA considers this an appropriate 

means to the same end of providing the affirmative defense to sources in a way that 

provides relief from monetary penalties for events that were beyond their control, at the 

same time providing incentive to the source to prevent the violation and to take all 

practicable steps to minimize the impacts of the violation in order to qualify for the relief 

from penalties. As described in more detail in section VII.B of this notice, the EPA is 

revising its recommendations for affirmative defense provisions for malfunctions with 

respect to this specific point in this proposal. 

Finally, the EPA understands the Petitioner's concern about enforcement 

proceedings becoming "mired" in various questions of fact that must be established in an 

enforcement action. However, the EPA notes that all enforcement proceedings turn upon 

important questions of fact that must be proven, including facts necessary to establish 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 280 of 322

whether there was a violation, the extent of the violation, and whether there are 

extenuating circumstances that should be taken into consideration in the assessment of 

monetary penalties or injunctive relief for the violation. Indeed, the statutory factors that 

Congress provided for the assessment of penalties in CAA section 113(e) explicitly

include "the seriousness of the violation," which would encompass the extent and 

severity of the environmental impact of the violation. Thus, the EPA does not agree that 

it is unreasonable to include an affirmative defense element that pertains to whether or 

not the excess emissions in question caused a violation of the NAAQS or PSD 

increments. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to 5 Colo. Code Regs § 1001-

2(II.J) because it provides an affirmative defense for violations due to excess emissions 

applicable during startup and shutdown events, contrary to the EPA's current 

interpretation of the CAA. The EPA believes that this provision allows for an affirmative 

defense that is inconsistent with the fundamental requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, this provision is inconsistent with the 

requirements of CAA sections 113 and 304. For these reasons, the EPA is proposing to 

find that this provision is substantially inadequate to meet CAA requirements and 

proposes to issue a SIP call with respect to this provision. 

The EPA proposes to deny the Petition with respect to 5 Colo. Code Regs § 1001-

2(II.E), because this provision includes an affirmative defense applicable to malfunction 

events that is consistent with the requirements of the CAA, as interpreted by the EPA in 

the SSM Policy. In particular, the EPA denies the Petition with respect to the claim that 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 281 of 322

this provision is inconsistent with the CAA because it is available to sources or groups of 

sources that might have the potential to cause violations of the NAAQS or PSD 

increments. The EPA believes that an acceptable alternative approach is to require the

source to establish, as an element of the affirmative defense, that the excess emissions in 

question did not cause such impacts. Accordingly, the EPA is proposing to find that this 

provision is consistent with CAA requirements and thus declining to make a finding of 

substantial inadequacy with respect to this provision. 

2. Montana 

a. Petitioner's Analysis 

The Petitioner objected to an exemption from otherwise applicable emission 

limitations for aluminum plants during startup and shutdown (Montana Admin. R 

17.8.334).178 The Petitioner argued that an automatic exemption for emissions during 

startup and shutdown events is inconsistent with the CAA and the EPA's interpretation of 

the CAA in the SSM Policy. In addition, the Petitioner argued that these exemptions also 

could not qualify as source-specific alternative limits applicable during startup and 

shutdown because there "is nothing to indicate that the State addressed the feasibility of 

control strategies, minimization of the frequency and duration of startup and shutdown 

modes, worst-case emissions, and impacts on air quality."

179 The Petitioner further 

objected that this provision would be in contravention of the EPA's recommendation that 

source-specific emission limitations for startup and shutdown would not be appropriate 

when a single source or small group of sources has the potential to cause an exceedance 

 

178 Petition at 50-51. 

179 Id. at 51. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 282 of 322

of the NAAQS or PSD increments. 

b. The EPA's Evaluation 

The EPA agrees that ARM 17.8.334 (in Administrative Rule of Montana) is 

inconsistent with the requirements of the CAA. This provision explicitly provides that 

affected sources are exempted from otherwise applicable SIP emission limitations during 

startup and shutdown. The relevant part of this SIP provision specifies that "[o]perations 

during startup and shutdown shall not constitute representative conditions for the 

purposes of determining compliance with this rule" and further specifies "nor shall 

emission in excess of the levels required in ARM 17.8.331 and 17.8.332 during periods 

of startup and shutdown be considered a violation of ARM 17.8.331 and 17.8.332."

180

The latter regulatory cross-references are to emission limits for fluorides and opacity at 

the source, both of which relate to the attainment and maintenance of the NAAQS and 

PSD increments.

181 Moreover, the provision in question also contains ambiguous 

regulatory text that suggests the exemption extends to other emission limitations 

applicable to this source category. By stating that operations during startup and shutdown 

are not representative conditions for determining compliance with "this rule," the 

provision appears to provide the same exemptions from other emission limitations that 

may apply to aluminum plants with respect to other air emissions as well. The EPA's 

longstanding interpretation of the CAA is that SIP provisions containing exemptions 

during startup and shutdown are not permissible. 

The EPA also agrees that ARM 17.8.334 does not qualify as a source-specific 

 

180 See, Montana Admin. R 17.8.334(1). 

181 The EPA notes that the state has elected to control fluoride emissions as a means of 

addressing particulate matter from the affected sources. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 283 of 322

emission limitation applicable during startup and shutdown, as recommended in the 1999 

SSM Guidance. As explained in section VII.A of this notice, the EPA is clarifying that 

guidance to eliminate any misperception that exemptions from otherwise applicable 

emission limitations are permissible during startup and shutdown. States can elect to 

develop appropriate source-specific alternative emission limitations that apply during 

startup and shutdown events. The EPA recommended that in order to be approvable (i.e., 

meet CAA requirements), any new special emission limitations applicable to the source 

during startup and shutdown should be narrowly tailored and take into account 

considerations such as the technological limitations of the specific source category and 

the control technology that is feasible during startup and shutdown. Any such SIP 

revision that would alter the existing applicable emission limitations for a source during 

startup and shutdown must meet the same requirements as any other SIP submission, i.e., 

compliance with CAA sections 110(a), 110(k), 110(l), and 193, and any other CAA 

provision substantively germane to the SIP revision. Given the text of ARM 17.8.334, 

however, the EPA believes the state intended not to create a source-specific emission 

limitation applicable during startup and shutdown but instead merely an exemption for 

such emissions. Likewise, the EPA does not believe that the issue of special emission 

limitations during startup or shutdown for a single source or group of sources was 

contemplated at the time the state created this SIP provision. Nevertheless, the EPA notes 

that its current SSM Policy does not interpret the CAA to be a bar to special emission 

limitations in these circumstances, if the state addresses the concern about impacts on 

NAAQS and PSD increments in some other comparable way. 

c. The EPA's Proposal 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 284 of 322

The EPA proposes to grant the Petition with respect to ARM 17.8.334. The EPA 

believes that this provision allows for exemptions from otherwise applicable SIP 

emission limitations during startup and shutdown and that such exemptions are 

inconsistent with the fundamental requirements of CAA sections 110(a)(2)(A), 

110(a)(2)(C), and 302(k). It is not necessary to reach the Petitioner's argument that this 

provision is not an appropriate source-specific emission limitation, because the provision

at issue instead provides an impermissible exemption for emissions during startup and 

shutdown. Similarly, it is not necessary to reach the Petitioner's concern with respect to 

the issue of a single source or group of sources with the potential to cause an exceedance 

of the NAAQS or PSD increment, because the provision at issue provides an 

impermissible exemption. For these reasons, the EPA is proposing to find that this 

provision is substantially inadequate to meet CAA requirements and thus proposes to 

issue a SIP call with respect to this provision. 

3. North Dakota 

a. Petitioner's Analysis 

The Petitioner objected to two provisions in the North Dakota SIP that create 

exemptions from otherwise applicable emission limitations.182 The first provision creates

exemptions from a number of cross-referenced opacity limits "where the limits specified 

in this article cannot be met because of operations and processes such as, but not limited 

to, oil field service and drilling operations, but only so long as it is not technically

feasible to meet said specifications" (N.D. Admin. Code § 33-15-03-04(4)). The second 

provision creates an implicit exemption for "temporary operational breakdowns or 

 

182 Petition at 59. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 285 of 322

cleaning of air pollution equipment" if the source meets certain conditions (N.D. Admin. 

Code § 33-15-05-01(2)(a)(1)). The Petitioner claimed that both provisions violate the 

CAA and the EPA's interpretation of the CAA in the SSM Policy because they create 

exemptions from otherwise applicable emission limitations for excess emissions during 

these events rather than treating the excess emissions as violations, and because the 

provisions could be construed to preclude enforcement of the emission limitations for 

these violations by the EPA and citizens. 

b. The EPA's Evaluation 

The EPA believes that N.D. Admin. Code 33-15-03-04.4 and N.D. Admin. Code

33-15-03-04.3183 are inconsistent with the requirements of the CAA. These provisions 

explicitly allow exemptions from the otherwise applicable emission limitations for 

opacity in several other regulations: N.D. Admin. Code 33-15-03-01, N.D. Admin. Code

33-15-03-02, N.D. Admin. Code 33-15-03-03, and N.D. Admin. Code 33-15-03-03.1. 

The exemption created by N.D. Admin. Code 33-15-03-04.4 is indefinite in scope and 

has unclear limits, because it is available whenever a source cannot meet the emission 

limitations "because of operations or processes such as, but not limited to, oil field 

service and drilling operations," but "only so long as it is not technically feasible to meet 

said [emission limitations]". It is unclear whether the provision is intended to apply only 

to special circumstances, such as malfunctions, or to a broader range of normal source 

operations. It is also unclear who determines what operations or processes make 

 

183 The EPA interprets the Petitioner's reference to N.D. Admin. Code § 33-15-03-04(4) 

as a citation to N.D. Admin. Code 33-15-03-04.4. The EPA notes also that the Petitioner 

specifically focused on concern with N.D. Admin. Code 33-15-04.4, but N.D. Admin. 

Code 33-15-03-04.3 also includes a related problem. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 286 of 322

compliance impossible or who determines when it again becomes technically feasible to 

meet the limits. Whatever the parameters of this imprecise provision, however, it is clear 

that it contemplates outright exemptions from the applicable emission limitations under 

certain circumstances and at certain times. 

The EPA believes that N.D. Admin. Code 33-15-03-04.3 is impermissible under 

the CAA as interpreted in the EPA's SSM Policy as an unbounded director's discretion 

provision. The provision states that the otherwise applicable emission limitations for 

opacity in the several other listed regulations do not apply "where an applicable opacity

standard is established for a specific source." In accordance with this provision, a state 

official could modify the opacity limits in a permit or other document to allow emissions 

in excess of the otherwise applicable SIP limitations. As discussed in section VII.A of

this notice, such director's discretion provisions are impermissible. Such an interpretation 

would make the state official the unilateral arbiter of whether the excess emissions in a 

given event constitute a violation, which could preclude enforcement by the EPA or the 

public who might disagree about whether enforcement action is warranted. Most 

importantly, however, the provision may be read to authorize the state official to create 

an exemption from the emission limitation, and such an exemption is impermissible in 

the first instance. The EPA believes that the inclusion of an unbounded director's 

discretion provision in N.D. Admin. Code 33-15-03-04.3 is thus a substantial inadequacy

and renders this specific SIP provision impermissible for this reason. 

In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in accordance with the definition of "emission 

limitations" in CAA section 302(k), such emission limitations must be continuous. SIP 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 287 of 322

provisions that create exemptions such that the excess emissions during startup, 

shutdown, or malfunctions are not violations of the applicable emission limitations are 

inconsistent with the fundamental requirements of the CAA with respect to emission 

limitations in SIPs. The exemptions provided in N.D. Admin. Code 33-15-03-04.4 are not 

consistent with CAA requirements, because they would exempt excess emissions that 

occur during the periods in question. In addition, the provision does not operate to create 

a source-specific emission limitation that applies during the periods in question, nor does 

it meet the recommended criteria and parameters for an affirmative defense for violations 

that occur as a result of a qualifying malfunction. Moreover, the amorphous nature of the 

provision, in which it is unclear who makes the determination whether the source should 

be excused from the emission limitations and what the precise parameters are for these 

exemptions, exacerbates the problem. Thus, the EPA also agrees with the Petitioner's 

concern that this provision could be interpreted to bar enforcement by the EPA or through 

a citizen suit, not only because it creates impermissible exemptions but also because of 

the inherent ambiguities about: (i) who makes the determination whether the excess 

emissions are to be considered a violation; and (ii) what constitutes an event during 

which the excess emissions are to be excused. In its current form, the EPA has concerns 

not only about the impermissible exemptions created by the provision but also about its 

practical enforceability as a SIP provision meeting basic CAA requirements for 

implementation, maintenance, and enforcement of the NAAQS as contemplated in CAA 

section 110. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 288 of 322

The EPA agrees that N.D. Admin. Code 33-15-05-01.2a(1)184 is also inconsistent 

with CAA requirements for SIP provisions. This provision creates an implicit exemption 

for "temporary operational breakdowns or cleaning of air pollution equipment" if the 

source meets certain conditions. N.D. Admin. Code 33-15-05-01 in general imposes 

emission limitations for particulate matter from industrial processes, with the limitations 

stated in terms of the maximum amount of particulate matter allowed in any one hour. 

Notwithstanding these emission limitations, however, N.D. Admin. Code 33-15-05-

01.2a(1) provides that: 

[t]emporary operational breakdowns or cleaning of air equipment for any process 

are permitted provided that the owner or operator immediately advises the 

department of the circumstances and outlines an acceptable corrective program 

and provided such operations do not cause an immediate public health hazard 

(emphasis added). 

Although N.D. Admin. Code 33-15-05-01.2a(1) does not explicitly state that the 

exceedances of the emission limitations are not violations, the EPA believes that this is 

the most reasonable reading of the provision. Moreover, the title for this subsection is 

"exceptions," and the immediately preceding provisions impose the emission limitations 

on sources. Thus, the provision creates an impermissible exemption from the otherwise 

applicable SIP emission limitations. 

The EPA notes that although the state has imposed some conditions on the 

exemptions, e.g., the requirement to notify state officials of occurrence of the event, this 

provision would not qualify as an affirmative defense consistent with CAA requirements. 

First, the exemptions would negate the availability of monetary penalties or injunctive 

 

184 The EPA interprets the Petitioner's reference to N.D. Admin. Code § 33-15-05-

01(2)(a)(1) as a citation to N.D. Admin. Code 33-15-05-01.2a(1).
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 289 of 322

relief in any enforcement proceeding. Second, the conditions for qualifying for the 

exemption are not consistent with the criteria that EPA recommends for elements of an 

affirmative defense for which the source bears the burden of proof in order to assure that 

they are narrowly drawn and available only in suitable circumstances. Third, the 

provision extends not just to "breakdowns," which presumably equates to malfunctions, 

but also extends to "cleaning of air equipment," which clearly encompasses excess 

emissions during normal source maintenance—events for which sources should be 

designed, operated, and maintained to comply with emission limitations, and during 

which sources should be expected to comply. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to N.D. Admin. Code 33-15-

03-04.4 (cited in the Petition as N.D. Admin. Code § 33-15-03-04(4)). The EPA believes 

that this provision allows for exemptions from otherwise applicable SIP emission 

limitations during startup and shutdown and that such exemptions are inconsistent with 

the fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). 

In addition, the EPA believes that this provision is sufficiently ambiguous that it would 

be difficult for the state, the EPA, or the public to enforce the provision effectively in its 

current form, and that this provision is thus inconsistent with the requirements of CAA 

section 110(a) on this basis as well. For these reasons, the EPA is proposing to find that 

this provision is substantially inadequate to meet CAA requirements and proposes to 

issue a SIP call with respect to this provision. 

The EPA also proposes to grant the Petition with respect to N.D. Admin. Code

33-15-03-04.3 (cited in the Petition as N.D. Admin. Code § 33-15-03-04(3)). The EPA 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 290 of 322

believes that this provision allows for discretionary exemptions from otherwise 

applicable emission limitations through a state official's unilateral exercise of 

discretionary authority that is insufficiently bounded. Such provisions are inconsistent 

with the fundamental requirements of the CAA with respect to SIPs and SIP revisions. 

Moreover, the discretion created by these provisions allows case-by-case exemptions 

from emission limitations, when such exemptions are not permissible in the first instance. 

Such exemptions are inconsistent with the fundamental requirements of the CAA with 

respect to emission limitations in SIPs as required by sections 110(a)(2)(A), 110(a)(2)(C), 

and 302(k). For these reasons, the EPA is proposing to find that this provision is 

substantially inadequate to meet CAA requirements and thus proposing to issue a SIP call 

with respect to this provision. 

The EPA also proposes to grant the Petition with respect to N.D. Admin. Code

33-15-05-01.2a(1) (cited in the Petition as N.D. Admin. Code § 33-15-05-01(2)(a)(1)). 

The EPA believes that this provision allows for exemptions from otherwise applicable 

SIP emission limitations during operational breakdowns (i.e., malfunctions) or cleaning 

of air equipment (i.e., maintenance) and that such exemptions are inconsistent with the 

fundamental requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For 

these reasons, the EPA is also proposing to find that this provision is substantially

inadequate to meet CAA requirements and proposes to issue a SIP call with respect to 

this provision. 

4. South Dakota 

a. Petitioner's Analysis 

The Petitioner objected to a provision in the South Dakota SIP that creates
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 291 of 322

exemptions from otherwise applicable SIP emission limitations (S.D. Admin, R. 

74:36:12:02(3)).

185 The Petitioner asserted that the provision imposes visible emission 

limitations on sources but explicitly excludes emissions that occur "for brief periods 

during such operations as soot blowing, start-up, shut-down, and malfunctions." The 

Petitioner argued that such automatic exemptions for excess emissions is contrary to the 

requirements of the CAA for SIP provisions, as well as contrary to the EPA's 1982 SSM 

Guidance and 1999 SSM Guidance. 

b. The EPA's Evaluation 

The EPA agrees that S.D. Admin. R. 74:36:12:02(3) is inconsistent with CAA 

requirements for SIP provisions. This provision creates an exemption from applicable 

visible emission limitations from the generally applicable SIP requirements. The S.D. 

Admin. R. 74:36:12:01 imposes a generally applicable opacity limit on all sources, 

measured using the EPA's Method 9. However, S.D. Admin. R. 74:36:12:02 provides 

exceptions to these limits and, in particular, in S.D. Admin. R. 74:36:12:02(3) includes an 

explicit exemption for emissions for "brief periods during such operations as soot 

blowing, start-up, shut-down, and malfunctions." 

In accordance with the requirements of CAA section 110(a)(2)(A), SIPs must 

contain emission limitations and, in accordance with the definition of "emission 

limitations" in CAA section 302(k), such emission limitations must be continuous. SIP 

provisions that create exemptions such that the excess emissions during startup, 

shutdown, or malfunctions are not violations of the applicable emission limitations are 

inconsistent with the fundamental requirements of the CAA with respect to emission 

 

185 Petition at 66. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 292 of 322

limitations in SIPs. In addition, the EPA's SSM Policy has long interpreted the CAA not 

to permit exemptions for excess emissions during other modes of normal source 

operation, such as "soot blowing." The EPA notes that by its terms, S.D. Admin. R. 

74:36:12:02(3) implies that it also would exempt excess emissions during other modes of 

normal source operation because it explicitly applies to events "such as" the four listed 

types, therefore implying it is not an exclusive list and could extend to other types of 

events as well. The exemptions provided in S.D. Admin. R. 74:36:12:02(3) are not 

consistent with CAA requirements, because they would exempt excess emissions that 

occur during the periods in question. Excess emissions must be treated as violations of 

the applicable emission limitations. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to S.D. Admin. R. 

74:36:12:02(3). The EPA believes that this provision allows for exemptions from

otherwise applicable SIP emission limitations during startup, shutdown, and malfunction, 

as well as during other modes of normal source operations such as "soot blowing." 

Automatic exemptions from otherwise applicable SIP emission limitations are 

inconsistent with the fundamental requirements of CAA sections 110(a)(2)(A), 

110(a)(2)(C), and 302(k). For these reasons, the EPA is also proposing to find that this 

provision is substantially inadequate to meet CAA requirements and proposes to issue a 

SIP call with respect to this provision. 

5. Wyoming 

a. Petitioner's Analysis 

The Petitioner objected to a specific provision in the Wyoming SIP that provides 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 293 of 322

an exemption for excess particulate matter emissions from diesel engines during startup, 

malfunction, and maintenance (ENV-AQ-1 Wyo. Code R. § 2(d)).186 The provision 

exempts emission of visible air pollutants from diesel engines from applicable SIP 

limitations "during a reasonable period of warmup following a cold start or where 

undergoing repairs and adjustment following malfunction." The Petitioner argued that 

this exemption "is contrary to EPA policy for source category-specific rules for startup 

and shutdown."187 Accordingly, the Petitioner requested that this provision be eliminated 

from the SIP. 

b. The EPA's Evaluation 

The EPA believes that the CAA does not allow for exemptions from otherwise 

applicable SIP emission limitations. In accordance with the requirements of CAA section 

110(a)(2)(A), SIPs must contain emission limitations and, in accordance with the 

definition of "emission limitations" in CAA section 302(k), such emission limitations 

must be continuous. Thus, any excess emissions above the level of the applicable 

emission limitation must be considered violations, whether or not the state elects to 

exercise its enforcement discretion. SIP provisions that create exemptions such that the 

excess emissions during startup, shutdown, or malfunctions are not violations of the 

applicable emission limitations are inconsistent with the fundamental requirements of the 

CAA with respect to emission limitations in SIPs. The EPA believes that the inclusion of 

such an exemption in WAQSR Chapter 3, section 2(d) from otherwise applicable SIP 

 

186 Petition at 74. The EPA notes that the Petitioner appears to have provided an incorrect 

citation to this provision; accordingly, in this notice, the EPA replaces that citation with 

the following: "Wyoming Air Quality Standards and Regulations (WAQSR) Chapter 3, 

section 2(d)." 

187 Id. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 294 of 322

emission limitations for violations during cold startup or following malfunction of diesel 

engines is a substantial inadequacy and renders this specific SIP provision impermissible. 

The EPA notes that WAQSR Chapter 3, section 2(d) does not appear to comply

with the CAA's requirements for source category-specific rules for startup and shutdown 

as interpreted in the EPA's SSM Policy. The provision provides that the otherwise 

applicable emission "limitation shall not apply during a reasonable period of warmup 

following a cold start." Recent court decisions have made clear that automatic 

exemptions from otherwise applicable SIP emission limitations for excess emissions 

during periods of startup are not in fact permissible under the CAA. As discussed in 

section VII.A of this notice, states may elect to develop alternative emission limitations 

or other forms of enforceable control measures or techniques that apply during startup or 

shutdown, but exemptions for excess emissions during such periods are inconsistent with 

the fundamental requirements of the CAA. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to WAQSR Chapter 3, 

section 2(d) (cited as ENV-AQ-1 Wyo. Code R. § 2(d) in the Petition). The EPA believes 

that this provision allows for exemptions from otherwise applicable SIP emission 

limitations, and that such exemptions are inconsistent with the fundamental requirements 

of the CAA with respect to emission limitations in SIPs as required by sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k). In addition, by creating these impermissible 

exemptions, the state has defined violations in a way that would interfere with effective 

enforcement by the EPA and citizens for excess emissions during these events as 

provided in CAA sections 113 and 304. For these reasons, the EPA is proposing to find 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 295 of 322

that this provision is substantially inadequate to meet CAA requirements and thus 

proposing to issue a SIP call with respect to this provision. 

J. Affected States and Local Jurisdictions in EPA Region IX 

1. Arizona 

a. Petitioner's Analysis

The Petitioner objected to two provisions in the Arizona Department of Air 

Quality's (ADEQ) Rule R18-2-310, which provide affirmative defenses for excess 

emissions during malfunctions (AAC Section R18-2-310(B)) and for excess emissions 

during startup or shutdown (AAC Section R18-2- 310(C)).188 First, the Petitioner asserted 

that all affirmative defenses for excess emissions are inconsistent with the CAA and 

should be removed from the Arizona SIP. 

Additionally, quoting from the EPA's statement in the SSM Policy that such 

affirmative defenses should not be available to "a single source or small group of sources 

[that] has the potential to cause an exceedance of the NAAQS or PSD increments," the 

Petitioner contended that "sources with the power to cause an exceedance should be 

strictly controlled at all times, not just when they actually cause an exceedance."189

Although acknowledging that R18-2-310 contains some limitations to address this issue, 

the Petitioner argued that the limitation in the SIP provision is not the same as entirely 

disallowing affirmative defenses for these types of sources, which removes the 

"incentive" for such sources to emit at levels close to those that would violate a NAAQS 

or PSD increment. Accordingly, the Petitioner requested that the EPA require Arizona 

 

188 Petition at 20-22. 

189 Petition at 20. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 296 of 322

either to entirely remove R18-2-310(B) and (C) from the SIP or to revise the rule so that 

affirmative defenses are not available to a single source or any small group of sources 

that has the potential to cause an exceedance of the NAAQS. 

Second, the Petitioner asserted that the provision applicable to startup and 

shutdown periods (R18-2-310(C)) does not include an explicit requirement for a source 

seeking to establish an affirmative defense to prove that "the excess emissions were not 

part of a recurring pattern indicative of inadequate design, operation, or maintenance." 

The Petitioner provided a table specifically comparing the provisions in R18-2-310(C) 

against the EPA's recommended criteria in the 1999 SSM Guidance to show that R18-2-

310(C) does not contain a specific provision to address this recommended criterion and 

stated that the rule should be revised to require such a demonstration. 

b. The EPA's Evaluation

The EPA disagrees with the Petitioner's contention that no affirmative defense 

provisions are permissible in SIPs under the CAA. As explained in more detail in section 

IV of this notice, the EPA interprets the CAA to allow affirmative defense provisions for 

malfunctions. So long as these provisions are narrowly drawn and consistent with the 

CAA, as recommended in the EPA's guidance for affirmative defense provisions in SIPs, 

the EPA believes that states may elect to have affirmative defense provisions for 

malfunctions. 

With respect to the potential air quality impacts of a "single source or small group 

of sources," the EPA believes that R18-2-310 satisfies the statutory requirements as 

interpreted in the EPA guidance. Rule R18-2-310 specifies five types of standards or 

limitations for which affirmative defenses are not available under the rule and includes 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 297 of 322

among those five types: standards or limitations contained in any Prevention of 

Significant Deterioration (PSD) or New Source Review (NSR) permit issued by the EPA; 

standards or limitations included in a PSD permit issued by the Arizona Department of 

Air Quality (ADEQ) to meet the requirements of R18-2-406(A)(5) (Permit Requirements 

for Sources Located in Attainment and Unclassifiable Areas); and standards or 

limitations contained in R18-2-715(F) ("Standards of Performance for Existing Primary

Copper Smelters; Site-specific Requirements") (R18-2-310(A)). Thus, no existing 

primary copper smelter subject to emission standards or limitations under R18-2-715(F) 

may seek an affirmative defense for any emissions in excess of those provisions, and 

likewise no major stationary source subject to permit conditions designed to protect the 

PSD increments in a PSD permit issued by ADEQ or the EPA may seek an affirmative 

defense for any emissions in excess of those permit conditions. Existing copper smelters 

are, to the EPA's knowledge, the only sources under ADEQ jurisdiction that have the 

potential to cause an exceedance of the NAAQS, and requirements to protect the PSD 

increments are implemented entirely through PSD permits issued by states and the EPA. 

Accordingly, the clear exclusion of these standards and limitations from the affirmative 

defense provisions in R18-2-310 adequately addresses the EPA's concerns with respect to 

potential violations of the NAAQS or PSD increments. 

With respect to other emission standards or limitations (i.e., those not specifically

excluded from coverage under the rule), R18-2-310 requires each source seeking to 

establish an affirmative defense to demonstrate, among other things, that "[d]uring the 

period of excess emissions there were no exceedances of the relevant ambient air quality 

standards . . . that could be attributed to the emitting source" (R18-2-310(B)(7), 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 298 of 322

(C)(1)(f)). The state's election to provide such an affirmative defense contingent upon a 

demonstration by the source that there were no exceedances of the relevant ambient air 

quality standards during the relevant period that could be attributed to the emitting source 

reasonably assures that these affirmative defense provisions will not create incentives to 

emit at higher levels or interfere with attainment and maintenance of the NAAQS. As 

described in section VII.B of this notice, the EPA considers this type of requirement an 

acceptable alternative approach to address the concern of sources or small groups of 

sources that could adversely impact the NAAQS or PSD increments through excess 

emissions. 

Second, with respect to the Petitioner's assertion that R18-2-310 should be revised 

to require a demonstration that excess emissions during startup or shutdown are not part 

of a recurring pattern indicative of inadequate design, operation, or maintenance, it is not 

necessary to reach this issue. Instead, the EPA is proposing to modify its interpretation of 

the CAA with respect to affirmative defenses for startup and shutdown to eliminate the 

recommended criteria for such provisions as articulated in the 1999 SSM Guidance and 

to find, instead, that all affirmative defense provisions for planned startup and shutdown 

periods are not appropriate for SIP provisions under the CAA. As discussed in sections 

IV and VII.C of this notice, the EPA believes that affirmative defense provisions are 

appropriate in SIPs for malfunctions but not for startup and shutdown. 

c. The EPA's Proposal

The EPA proposes to deny the Petition with respect to the arguments concerning 

ADEQ's affirmative defense provisions for malfunctions in R18-2-310(B). For the 

reasons provided above and in our previous approval of R18-2-310 into the Arizona 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 299 of 322

SIP,190 the EPA believes that these affirmative defense provisions are consistent with the 

requirements of the CAA. 

With respect to the arguments concerning ADEQ's affirmative defense provisions 

for startup and shutdown periods in R18-2- 310(C), however, the EPA proposes to grant 

the Petition, because R18-2- 310(C) is inconsistent with the requirements of CAA 

sections 110(a)(2)(A), 110(a)(2)(C), and 302(k), as well as CAA sections 113 and 304. 

The EPA believes that a SIP provision establishing an affirmative defense for planned 

startup and shutdown periods is substantially inadequate to comply with CAA 

requirements. For these reasons, the EPA is proposing to issue a SIP call with respect to 

R18-2- 310(C). 

2. Arizona: Maricopa County

a. Petitioner's Analysis

The Petitioner objected to two provisions in the Maricopa County Air Pollution 

Control Regulations that provide affirmative defenses for excess emissions during 

malfunctions (Maricopa County Air Pollution Control Regulation 3, Rule 140, §401) and 

for excess emissions during startup or shutdown (Maricopa County Air Pollution Control 

Regulation 3, Rule 140, §402).191 These provisions in Maricopa County Air Quality 

Department (MCAQD) Rule 140 are similar to the affirmative defense provisions in 

ADEQ R18-2-310. 

First, the Petitioner asserted that the affirmative defense provisions in Rule 140 

are problematic for the same reasons identified in the Petition with respect to ADEQ 

 

190 See, 66 FR 48085 at 48087 (Sept. 18, 2001) (final rule approving R18-2-310 into 

Arizona SIP). 

191 Petition at 23. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 300 of 322

R18-2-310. Specifically, the Petitioner argued that affirmative defenses should not be 

allowed in any SIP and, alternatively, that to the extent affirmative defenses are 

permissible, the provisions in Rule 140 addressing exceedances of the ambient standards 

are "inappropriately permissive and do not comply with EPA guidance." 192 Accordingly, 

the Petitioner requested that the EPA require Arizona and/or MCAQD either to entirely 

remove these provisions from the SIP or to revise them so that they are not available to a 

single source or small group of sources that has the potential to cause a NAAQS 

exceedance. Second, the Petitioner asserted that the provisions for startup and shutdown 

in Rule 140 do not include an explicit requirement for a source seeking to establish an 

affirmative defense to prove that "the excess emissions in question were not part of a 

recurring pattern indicative of inadequate design, operation, or maintenance." The 

Petitioner argued that Rule 140 should be revised to require such a demonstration. 

b. The EPA's Evaluation

First, with respect to the potential air quality impacts of a "single source or small 

group of sources," the EPA believes that MCAQD Rule 140 satisfies the statutory

requirements as interpreted in the EPA's guidance. Rule 140 specifies four types of 

standards or limitations for which affirmative defenses are not available under the rule, 

including standards and limitations contained in any Prevention of Significant 

Deterioration (PSD) or New Source Review (NSR) permit issued by the EPA, and 

standards and limitations included in a PSD permit issued by MCAQD to meet the 

requirements of subsection 308.1(e) of Rule 240 (Permit Requirements For New Major 

Sources And Major Modifications To Existing Major Sources) (Rule 140, sections 103.3, 

 

192 Petition at 23. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 301 of 322

103.4). Thus, no major stationary source subject to permit conditions designed to protect 

the PSD increments in a PSD permit issued by MCAQD or the EPA may seek an 

affirmative defense for any emissions in excess of those permit conditions. These 

provisions adequately address the EPA's concerns regarding potential violations of the 

PSD increments. 

Rule 140 also requires each source seeking to establish an affirmative defense to 

demonstrate, among other things, that "[d]uring the period of excess emissions there were 

no exceedances of the relevant ambient air quality standards . . . that could be attributed 

to the emitting source" (Rule 140, sections 401.7, 402.1(f)). The state's election to 

provide such an affirmative defense contingent upon a demonstration by the source that 

there were no exceedances of the relevant ambient air quality standards during the 

relevant period that could be attributed to the emitting source reasonably assures that 

these affirmative defenses provisions will not create incentives to emit at higher levels or 

interfere with attainment and maintenance of the NAAQS. As described in section VII.B 

of this notice, the EPA considers this type of requirement an acceptable alternative 

approach to address the concern of sources or small groups of sources that could 

adversely impact the NAAQS or PSD increments through excess emissions. 

Second, with respect to the Petitioner's assertion that MCAQD Rule 140 should 

be revised to require a demonstration that excess emissions during startup or shutdown 

are not part of a recurring pattern indicative of inadequate design, operation, or 

maintenance, it is not necessary to reach this issue. Instead, the EPA is proposing to 

modify its interpretation of the CAA with respect to affirmative defenses for startup and 

shutdown to eliminate the recommended criteria for such provisions as articulated in the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 302 of 322

1999 SSM Guidance and to find, instead, that all affirmative defense provisions for 

planned startup and shutdown periods are not appropriate for SIP provisions under the 

CAA. As discussed in sections IV and VII.C of this notice, the EPA believes that 

affirmative defense provisions are appropriate in SIPs for malfunctions but not for startup 

and shutdown. 

c. The EPA's Proposal

The EPA proposes to deny the Petition with respect to the arguments concerning 

MCAQD's affirmative defense provisions for malfunctions in Rule 140, section 401. For 

the reasons provided above and in our previous approval of Rule 140 into the Arizona 

SIP,193 the EPA believes that these affirmative defense provisions are consistent with the 

requirements of the CAA. 

With respect to the arguments concerning ADEQ's affirmative defense provisions 

for startup and shutdown periods in Rule 140, section 402, however, the EPA proposes to 

grant the Petition, because it is inconsistent with the requirements of CAA sections 

110(a)(2)(A), 110(a)(2)(C), and 302(k), as well as CAA sections 113 and 304. The EPA 

believes that a SIP provision establishing an affirmative defense for planned startup and 

shutdown periods is substantially inadequate to comply with CAA requirements. For 

these reasons, the EPA is proposing to issue a SIP call with respect to Maricopa County

Air Pollution Control Regulation 3, Rule 140, §402. 

3. Arizona: Pima County

a. Petitioner's Analysis 

The Petitioner objected to a provision in the Pima County Department of 

 

193 See, 67 FR 54957 (Aug. 27, 2002) (final rule approving Rule 140 into Arizona SIP). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 303 of 322

Environmental Quality's (PCDEQ) Rule 706 that pertains to enforcement discretion.194

Quoting from paragraph (D) of Rule 706, which provides that "[t]he Control Officer may

defer prosecution of a Notice of Violation issued for an exceedance of a control standard 

if . . ." certain conditions are met, the Petitioner argued that ambiguity in this provision 

could be construed to preclude enforcement by the EPA or citizens. The Petitioner 

requested that the EPA require the PCDEQ and/or Arizona to revise this provision to 

make clear that a decision by the Pima County Control Officer not to enforce under the 

rule would in no way affect enforcement by the EPA or citizens. 

b. The EPA's Evaluation

The EPA disagrees with the Petitioner's assertion that Rule 706 creates ambiguity

that could be construed to preclude enforcement by the EPA or through a citizen suit. 

Paragraph (D) of Rule 706 states that "[t]he control officer may defer prosecution of a 

Notice of Violation issued for an exceedance of a control standard if" four specific 

conditions are met (PCDEQ Rule 706, paragraph (D), emphasis added). Rule 706 does 

not address the EPA or citizen enforcement in any way and on its face does nothing to 

preclude enforcement by the EPA or through a citizen suit. Even with respect to the 

PCDEQ's authorities, the rule authorizes but does not require the Control Officer to defer 

prosecution where the identified criteria are met. 

c. The EPA's Proposal

The EPA proposes to deny the Petition with respect to PCDEQ Rule 706. The 

EPA believes that the provision regarding enforcement in paragraph (D) of this rule 

clearly applies only to the PCDEQ Control Officer and could not reasonably be read by a 

 

194 Petition at 23-24. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 304 of 322

court to foreclose enforcement by the EPA or through a citizen suit where the PCDEQ 

Control Officer elects to exercise enforcement discretion. The EPA solicits comment on 

this issue, in particular from the State of Arizona and from the PCDEQ, to assure that 

there is no misunderstanding with respect to the correct interpretation of Rule 706. 

K. Affected States in EPA Region X 

1. Alaska 

a. Petitioner's Analysis 

The Petitioner objected to a provision in the Alaska SIP that provides an excuse 

for "unavoidable" excess emissions that occur during SSM events, including startup, 

shutdown, scheduled maintenance, and "upsets" (Alaska Admin. Code tit. 18 § 

50.240).195 The provision provides: "Excess emissions determined to be unavoidable 

under this section will be excused and are not subject to penalty. This section does not 

limit the department's power to enjoin the emission or require corrective action." The 

Petitioner argued that this provision excuses excess emissions in violation of the CAA 

and the EPA's SSM Policy, which require all such emissions to be treated as violations of 

the applicable SIP emission limitations. The Petitioner further argued that it is unclear 

whether the provision could be interpreted to bar enforcement actions brought by the 

EPA or citizens, because it is drafted as if the state were the sole enforcement authority. 

Finally, the Petitioner pointed out, the provision is worded as if it were an affirmative 

defense, but it uses criteria for enforcement discretion. 

b. The EPA's Evaluation 

The EPA interprets Alaska Admin. Code tit. 18 § 50.240 as providing an 

 

195 Petition at 18-20.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 305 of 322

affirmative defense under which excess emissions that occur during certain SSM events 

may be "excused" if the requisite showing is made by the source. This provision is 

substantially inadequate for three reasons. First, provisions that allow a state official's 

decision to bar EPA or citizen enforcement are impermissible under the CAA. Although 

Alaska Admin. Code tit. 18 § 50.240 states that it "does not limit the department's power 

to enjoin the emission nor require corrective action" (emphasis added), it also states that 

"[e]xcess emissions determined to be unavoidable under this section will be excused and 

are not subject to penalty." The net effect of this language appears to bar the EPA and the 

public from seeking injunctive relief. Moreover, the provision is ambiguous as to whether 

the EPA or the public could pursue an action for civil penalties if they disagreed with the 

state official's determination that excess emissions were unavoidable. 

Second, as explained more fully in sections IV.B and VII.C of this notice, the 

EPA believes that affirmative defense provisions that apply to startup, shutdown, or 

maintenance events are inconsistent with the requirements of the CAA. Consequently, 

Alaska Admin. Code tit. 18 § 50.240, which applies to excess emissions that occur during 

startup, shutdown, and scheduled maintenance, is impermissible for this reason as well. 

Finally, while the EPA continues to believe that affirmative defense provisions 

applying to malfunctions can be consistent with the CAA, as long as the criteria set forth 

in the SSM Policy are carefully adhered to (as explained in more detail in sections IV.B 

and VII.B of this notice), the criteria in Alaska Admin. Code tit. 18 § 50.240 are not 

sufficiently similar to those recommended in the EPA's SSM Policy to assure that the 

affirmative defense is available only in appropriately narrow circumstances. The EPA 

acknowledges that the SSM Policy is only guidance concerning what types of SIP 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 306 of 322

provisions could be consistent with the requirements of the CAA. Nonetheless, through 

this rulemaking, the EPA is proposing to determine that Alaska Admin. Code tit. 18 § 

50.240 does not include criteria that are sufficiently robust to qualify as an acceptable 

affirmative defense provision for malfunctions (i.e., upsets). For example, the defense 

available in Alaska Admin. Code tit. 18 § 50.240 is not limited to excess emissions 

caused by sudden, unavoidable, breakdown of technology beyond the control of the 

owner or operator. Similarly, the provision contains neither a statement that the defense 

does not apply in situations where a single source or small group of sources has the 

potential to cause an exceedance of the NAAQS or PSD increments nor a requirement 

that sources make an after-the-fact showing that no such exceedance occurred. 

Accordingly, the EPA agrees with the Petitioner's contention that the provision is 

substantially inadequate to satisfy the requirements of the CAA. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to Alaska Admin. Code tit. 

18 § 50.240. The provision applies to startup, shutdown, and maintenance events, 

contrary to the EPA's interpretation of the CAA to allow such affirmative defenses only 

for malfunctions. Additionally, the section of Alaska Admin. Code tit. 18 § 50.240

applying to "upsets" is inadequate because the criteria referenced are not sufficiently 

similar to those recommended in the EPA's SSM Policy for affirmative defense 

provisions applicable to malfunctions. Thus, the provision is inconsistent with the 

requirements of CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). Moreover, the 

provision appears to bar the EPA and citizens from seeking penalties and injunctive 

relief. As a result, Alaska Admin. Code tit. 18 § 50.240 is inconsistent with the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 307 of 322

fundamental requirements of CAA sections 113 and 304. For these reasons, the EPA is 

proposing to find that the provision is substantially inadequate to meet CAA requirements 

and proposes to issue a SIP call with respect to the provision. 

2. Idaho 

a. Petitioner's Analysis 

The Petitioner objected to a provision in the Idaho SIP that appears to grant 

enforcement discretion to the state as to whether to impose penalties for excess emissions 

during certain SSM events (Idaho Admin. Code r. 58.01.01.131).196 The provision 

provides that "[t]he Department shall consider the sufficiency of the information 

submitted and the following criteria to determine if an enforcement action to impose 

penalties is warranted . . . ." The Petitioner argued that this provision could be interpreted 

to give the Department authority to decide that enforcement is not warranted by anyone, 

thereby precluding action by the EPA and citizens for civil penalties or injunctive relief. 

b. The EPA's Evaluation 

The EPA's SSM Policy interprets the CAA to allow states to elect to have 

appropriately drawn SIP provisions addressing the exercise of enforcement discretion by

state personnel. As the Petitioner recognized, Idaho Admin. Code r. 58.01.01.131 appears 

to be a statement of enforcement discretion, and it delineates factors that will be 

considered by the Department in determining whether to pursue enforcement for 

violations due to excess emissions. Subsection 101.03 of the provision clearly states that 

"[a]ny decision by the Department . . . shall not excuse the owner or operator from 

compliance with the relevant emission standard." There is no language suggesting that 

 

196 Petition at 33.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 308 of 322

the Department's determination to forgo state enforcement against a source would in any

way preclude the EPA or the public from demonstrating that violations occurred or from 

taking enforcement action. Consequently, the EPA believes the provision is consistent 

with the requirements of the CAA. 

c. The EPA's Proposal 

The EPA proposes to deny the Petition with respect to Idaho Admin. Code r. 

58.01.01.131. The EPA interprets this provision to allow both the EPA and the public to 

seek civil penalties or injunctive relief, regardless of how the state chooses to exercise its 

enforcement discretion. The EPA solicits comments on this issue, in particular from the 

State of Idaho, to assure that there is no misunderstanding with respect to the correct 

interpretation of Idaho Admin. Code r. 58.01.01.131. 

3. Oregon 

a. Petitioner's Analysis 

The Petitioner objected to a provision in the Oregon SIP that grants enforcement 

discretion to the state to pursue violations for excess emissions during certain SSM 

events (Or. Admin. R. 340-028-1450).

197 The provision provides that "[i]n determining if 

a period of excess emissions is avoidable, and whether enforcement action is warranted, 

the Department, based upon information submitted by the owner and or operator, shall 

consider whether the following criteria are met . . . ." The Petitioner argued that this

provision could be interpreted to give the Department authority to decide that 

enforcement is not warranted by anyone, thereby precluding action by the EPA and 

citizens for civil penalties or injunctive relief. 

 

197 Petition at 63.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 309 of 322

b. The EPA's Evaluation 

After the Petition was filed, the provision of the Oregon SIP cited by the 

Petitioner was recodified and revised by the state and was submitted to the EPA as part of 

a SIP revision. The EPA approved the SIP revision on December 27, 2011.198 The 

provision has been recodified and revised at Or. Admin. R. 340-214-0350. The provision 

as recodified provides that "[i]n determining whether to take enforcement action for 

excess emissions, the Department considers, based upon information submitted by the 

owner or operator," a list of factors. 

The EPA's SSM Policy interprets the CAA to allow states to elect to have SIP 

provisions that pertain to the exercise of enforcement discretion by state personnel. As 

revised by Oregon and approved by the EPA into the SIP, Or. Admin. R. 340-214-0350 is 

plainly a statement of enforcement discretion, and it delineates factors that will be 

considered by the Department in determining whether to pursue state enforcement for 

violations of the applicable SIP emission limitations due to excess emissions. There is no

language in this provision suggesting that the Department's determination to forgo 

enforcement against a source would in any way preclude the EPA or the public from 

demonstrating that violations occurred and taking enforcement action. Consequently, the 

EPA believes the current SIP provision is consistent with the requirements of the CAA. 

c. The EPA's Proposal 

The EPA proposes to deny the Petition with respect to Or. Admin. R. 340-028-

1450. This provision has since been recodified and approved by the EPA at Or. Admin. 

R. 340-214-0350. The EPA interprets the recodified provision to allow both the EPA and 

 

198 76 FR 80725 at 80747. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 310 of 322

the public to seek civil penalties or injunctive relief, regardless of how the state chooses 

to exercise its enforcement discretion. The EPA solicits comments on this issue, in 

particular from the State of Oregon, to assure that there is no misunderstanding with 

respect to the correct interpretation of Or. Admin. R. 340-214-0350. 

4. Washington 

a. Petitioner's Analysis 

The Petitioner objected to a provision in the Washington SIP that provides an 

excuse for "unavoidable" excess emissions that occur during certain SSM events, 

including startup, shutdown, scheduled maintenance, and "upsets" (Wash. Admin. Code § 

173-400-107).

199 The provision provides that "[e]xcess emissions determined to be 

unavoidable under the procedures and criteria under this section shall be excused and are 

not subject to penalty." The Petitioner argued that this provision excuses excess 

emissions in violation of the CAA and the EPA's SSM Policy, which require all such 

emissions to be treated as violations of the applicable SIP emission limitations. The 

Petitioner further argued that it is unclear whether the provision could be interpreted to 

bar enforcement actions brought by the EPA or citizens, because it is drafted as if the 

state were the sole enforcement authority. Finally, the Petitioner pointed out, the 

provision is worded as if it were an affirmative defense, but it uses criteria for 

enforcement discretion. 

b. The EPA's Evaluation 

The EPA interprets Wash. Admin. Code § 173-400-107 as an affirmative defense 

under which excess emissions that occur during certain SSM events can be "excused" if 

 

199 Petition at 71-72.
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 311 of 322

the requisite showing is made by the source. This provision is substantially inadequate for 

four reasons. First, provisions that allow a state official's decision to bar the EPA or 

citizen enforcement are impermissible under the CAA. The Wash. Admin. Code § 173-

400-107 provides that "[t]he owner or operator of a source shall have the burden of 

proving to Ecology or the authority or the decision-maker in an enforcement action that 

excess emissions were unavoidable." This language makes clear that the state's 

determination is not binding on the EPA or the public, because it refers to other 

authorities and decision-makers besides the state agency. However, the provision also 

states that "[e]xcess emissions determined to be unavoidable . . . shall be excused and not 

subject to penalty." This language could be interpreted to preclude those excess emissions 

deemed "unavoidable" from being considered violations of the applicable SIP emission 

limitations, and thus it could preclude enforcement by the EPA or through a citizen suit. 

Second, it is unclear whether the affirmative defense applies only to actions for 

monetary penalties or could also be used to bar actions seeking injunctive relief. 

Although the EPA believes that narrowly drawn affirmative defenses are permitted under 

the CAA for malfunction events, as discussed in sections IV.B and VII.B of this notice,

the EPA's interpretation is that such affirmative defenses can only shield the source from 

monetary penalties and cannot be a bar to injunctive relief. 

Third, as explained more fully in sections IV.B and VII.C of this notice, the EPA 

believes that affirmative defense provisions that apply to startup, shutdown, or 

maintenance events are inconsistent with the requirements of the CAA on their face. 

Consequently, Wash. Admin. Code § 173-400-107, which applies to excess emissions 

that occur during startup, shutdown, and scheduled maintenance, is impermissible for this 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 312 of 322

reason as well. 

Finally, while the EPA continues to believe that affirmative defense provisions 

applying to malfunctions can be consistent with the CAA as long as the criteria set forth 

in the SSM Policy are carefully adhered to, as discussed in sections IV.B and VII.B of 

this notice, the criteria in Wash. Admin. Code § 173-400-107 are not sufficiently similar 

to those recommended in the EPA's SSM Policy to assure that the affirmative defense is 

available only in appropriately narrow circumstances. The EPA acknowledges that the 

SSM Policy is only guidance concerning what types of SIP provisions could be consistent 

with the requirements of the CAA. Nonetheless, through this rulemaking, the EPA is 

proposing to determine that Wash. Admin. Code § 173-400-107 does not include criteria 

that are sufficiently robust to qualify as an acceptable affirmative defense provision for 

malfunctions (i.e., "upsets"). For example, the defense available in Wash. Admin. Code § 

173-400-107 is not limited to excess emissions caused by sudden, unavoidable, 

breakdown of technology beyond the control of the owner or operator. Similarly, the 

provision contains neither a statement that the defense does not apply in situations where 

a single source or small group of sources has the potential to cause an exceedance of the 

NAAQS or PSD increments nor a requirement that sources make an after-the-fact 

showing that no such exceedance occurred. As a result, the EPA believes that the 

provision is substantially inadequate to satisfy the requirements of the CAA. 

c. The EPA's Proposal 

The EPA proposes to grant the Petition with respect to Wash. Admin. Code § 

173-400-107. The provision applies to startup, shutdown, and maintenance events, 

contrary to the EPA's interpretation of the CAA to allow such affirmative defenses only 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 313 of 322

for malfunctions. Furthermore, the section of Wash. Admin. Code § 173-400-107

applying to "upsets" is inadequate because the criteria referenced are not sufficiently 

similar to those recommended in the EPA's SSM Policy for affirmative defenses for 

excess emissions due to malfunctions. Finally, the provision is unclear as to whether the 

EPA and the public could still seek injunctive relief if a state official made a 

determination that excess emissions were unavoidable. As a result, the EPA believes that 

Wash. Admin. Code § 173-400-107 is inconsistent with the fundamental requirements of 

CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is 

proposing to find that the provision is substantially inadequate to meet CAA requirements 

and proposes to issue a SIP call with respect to the provision. 

X. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 

13563: Improving Regulation and Regulatory Review 

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a 

"significant regulatory action" because it raises novel legal or policy issues. Accordingly, 

the EPA submitted this action to the Office of Management and Budget (OMB) for 

review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and 

any changes made in response to OMB recommendations have been documented in the 

docket for this action. 

B. Paperwork Reduction Act 

This action does not impose any new information collection burden. The EPA's 

proposed action in response to the Petition merely reiterates the EPA's interpretation of 

the statutory requirements of the CAA and does not require states to collect any
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 314 of 322

additional information. To the extent that the EPA proposes to grant the Petition and thus 

proposes to issue a SIP call to a state under CAA section 110(k)(5), the EPA is only

proposing an action that requires the state to revise its SIP to comply with existing 

requirements of the CAA. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking 

requirements under the Administrative Procedure Act or any other statute unless the 

agency certifies that the rule will not have a significant economic impact on a substantial 

number of small entities.200

After considering the economic impacts of this proposed rule on small entities, I 

certify that this action will not have a significant economic impact on a substantial 

number of small entities. Courts have interpreted the RFA to require a regulatory

flexibility analysis only when small entities will be subject to the requirements of the 

rule. See, e.g., Michigan v. EPA, 213 F.3d 663 (D.C. Cir. 2000); Mid-Tex Elec. Co-op, 

Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985). This proposed rule will not impose any 

requirements on small entities. Instead, the proposed action merely reiterates the EPA's 

interpretation of the statutory requirements of the CAA. To the extent that the EPA 

 

200 Small entities include small businesses, small organizations, and small governmental 

jurisdictions. For purposes of assessing the impacts of this notice on small entities, small 

entity is defined as: (1) a small business that is a small industrial entity as defined in the 

U.S. Small Business Administration (SBA) size standards (see 13 CFR 121.201); (2) a 

small governmental jurisdiction that is a government of a city, county, town, school 

district, or special district with a population of less than 50,000; or (3) a small 

organization that is any not-for-profit enterprise that is independently owned and 

operated and is not dominant in its field. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 315 of 322

proposes to grant the Petition and thus proposes to issue a SIP call to a state under CAA 

section 110(k)(5), the EPA is only proposing an action that requires the state to revise its 

SIP to comply with existing requirements of the CAA. The EPA's action, therefore, 

would leave to states the choice of how to revise the SIP provision in question to make it 

consistent with CAA requirements and determining, among other things, which of the 

several lawful approaches to the treatment of excess emissions during SSM events will be 

applied to particular sources. We continue to be interested in the potential impacts of the 

proposed rule on small entities and welcome comments on issues related to such impacts. 

D. Unfunded Mandates Reform Act 

This rule does not contain a federal mandate that may result in expenditures of 

$100 million or more for state, local, and tribal governments, in the aggregate, or the 

private sector in any one year. The action may impose a duty on certain state 

governments to meet their existing obligations to revise their SIPs to comply with CAA 

requirements. The direct costs of this action on states would be those associated with 

preparation and submission of a SIP revision by those states for which the EPA issues a 

SIP call. Examples of such costs could include development of a state rule, conducting 

notice and public hearing, and other costs incurred in connection with a SIP submission. 

These aggregate costs would be far less than the $100-million threshold in any one year. 

Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA. 

This rule is also not subject to the requirements of section 203 of UMRA because 

it contains no regulatory requirements that might significantly or uniquely affect small 

governments. The regulatory requirements of this action would apply to the states for 

which the EPA issues a SIP call. To the extent that such states allow local air districts or 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 316 of 322

planning organizations to implement portions of the state's obligation under the CAA, the 

regulatory requirements of this action would not significantly or uniquely affect small 

governments because those governments have already undertaken the obligation to 

comply with the CAA. 

E. Executive Order 13132 – Federalism 

This action does not have federalism implications. It will not have substantial 

direct effects on the states, on the relationship between the national government and the 

states, or on the distribution of power and responsibilities among the various levels of 

government, as specified in Executive Order 13132 because it will simply maintain the 

relationship and the distribution of power between the EPA and the states as established 

by the CAA. The proposed SIP calls are required by the CAA because the EPA is 

proposing to find that the current SIPs of the affected states are substantially inadequate 

to meet fundamental CAA requirements. In addition, the effects on the states will not be 

substantial because where a SIP call is finalized for a state, the SIP call will require the 

affected state to submit only those revisions necessary to address the SIP deficiencies and 

applicable CAA requirements. While this action may impose direct effects on the states, 

the expenditures would not be substantial because they would be far less than $25 million 

in the aggregate in any one year.201 Thus, Executive Order 13132 does not apply to this 

action. 

In the spirit of Executive Order 13132, and consistent with the EPA policy to 

promote communications between the EPA and state and local governments, the EPA 

 

201 "EPA Action Development Process Guidance on Executive Order 13132: 

Federalism," dated November 2008. 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 317 of 322

specifically solicits comment on this proposed rule from state and local officials. 

F. Executive Order 13175 – Consultation and Coordination with Indian Tribal 

Governments 

This action does not have tribal implications, as specified in Executive Order 

13175 (65 FR 67249, November 9, 2000). In this action, the EPA is not addressing any 

tribal implementation plans. This action is limited to states. Thus, Executive Order 13175 

does not apply to this action. However, the EPA invites comment on this proposed action 

from tribal officials. 

G. Executive Order 13045 – Protection of Children from Environmental Health 

Risks and Safety Risks 

The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to 

those regulatory actions that concern health or safety risks, such that the analysis required 

under section 5-501 of the EO has the potential to influence the regulation. This action is 

not subject to EO 13045 because it merely prescribes the EPA's action for states 

regarding their obligations for SIPs under the CAA. 

H. Executive Order 13211 – Actions Concerning Regulations That Significantly 

Affect Energy Supply, Distribution, or Use 

This action is not a "significant energy action" as defined in Executive Order 

13211 (66 FR 28355(May 22, 2001)), because it is not likely to have a significant adverse 

effect on the supply, distribution, or use of energy. This action merely prescribes the 

EPA's action for states regarding their obligations for SIPs under the CAA. 

I. National Technology Transfer and Advancement Act 

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 318 of 322

("NTTAA"), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use 

voluntary consensus standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. Voluntary consensus standards 

are technical standards (e.g., materials specifications, test methods, sampling procedures, 

and business practices) that are developed or adopted by voluntary consensus standards 

bodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when 

the EPA decides not to use available and applicable voluntary consensus standards. 

This proposed rulemaking does not involve technical standards. Therefore, the 

EPA is not considering the use of any voluntary consensus standards. 

J. Executive Order 12898 – Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations 

Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the 

greatest extent practicable and permitted by law, to make environmental justice part of 

their mission by identifying and addressing, as appropriate, disproportionately high and 

adverse human health or environmental effects of their programs, policies, and activities 

on minority populations and low-income populations in the U.S. 

The EPA has determined that this proposed rule will not have disproportionately

high and adverse human health or environmental effects on minority or low-income 

populations because it increases the level of environmental protection for all affected 

populations without having any disproportionately high and adverse human health or 

environmental effects on any population, including any minority or low-income 

population. The rule is intended to ensure that all communities and populations across the 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 319 of 322

affected states, including minority, low-income and indigenous populations overburdened 

by pollution, receive the full human health and environmental protection provided by the 

CAA. This proposed action concerns states’ obligations regarding the treatment they

give, in rules included in their SIPs under the CAA, to excess emissions during startup, 

shutdown, and malfunctions. This proposed action would require 36 states to bring their 

treatment of these emissions into line with CAA requirements, which would lead to 

sources' having greater incentives to control emissions during such events.

K. Determination Under Section 307(d) 

Pursuant to CAA section 307(d)(1)(U), the Administrator determines that this 

action is subject to the provisions of section 307(d). Section 307(d)(1)(U) provides that 

the provisions of section 307(d) apply to "such other actions as the Administrator may

determine." 

L. Judicial Review 

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have 

venue for petitions of review of final agency actions by the EPA under the CAA. This 

section provides, in part, that petitions for review must be filed in the Court of Appeals 

for the District of Columbia Circuit (i) when the agency action consists of "nationally 

applicable regulations promulgated, or final actions taken, by the Administrator," or (ii) 

when such action is locally or regionally applicable, if "such action is based on a 

determination of nationwide scope or effect and if in taking such action the Administrator 

finds and publishes that such action is based on such a determination." 

This rule responding to the Petition is "nationally applicable" within the meaning 

of section 307(b)(1). First, the rulemaking addresses a Petition that raises issues that are 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 320 of 322

applicable in all states and territories in the U.S. For example, the Petitioner requested

that the EPA revise its SSM Policy with respect to whether affirmative defense 

provisions in SIPs are consistent with CAA requirements. The EPA's response is relevant 

for all states nationwide. Second, the rulemaking will address a Petition that raises issues 

relevant to specific existing SIP provisions in 39 states across the U.S. that are located in 

each of the 10 EPA Regions, 10 different federal circuits, and multiple time zones. Third, 

the rulemaking addresses a common core of knowledge and analysis involved in 

formulating the decision and a common interpretation of the requirements of the CAA 

being applied to SIPs in states across the country. Fourth, the rulemaking, by addressing 

issues relevant to appropriate SIP provisions in one state, may have precedential impacts 

upon the SIPs of other states nationwide. Courts have found similar rulemaking actions to 

be of nationwide scope and effect.202

This determination is appropriate because in the 1977 CAA Amendments that 

revised CAA section 307(b)(1), Congress noted that the Administrator's determination 

that an action is of "nationwide scope or effect" would be appropriate for any action that 

has "scope or effect beyond a single judicial circuit." H.R. Rep. No. 95-294 at 323 - 324,

reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this rulemaking 

extends to numerous judicial circuits because the action on the petition extends to states 

throughout the country. In these circumstances, section 307(b)(1) and its legislative 

history authorize the Administrator to find the rule to be of "nationwide scope or effect" 

 

202 See, e.g., State of Texas, et al. v. EPA, 2011 U.S. App. LEXIS 5654 (5th Cir. 2011) 

(finding SIP call to 13 states to be of nationwide scope and effect and thus transferring 

the case to the U.S. Court of Appeals for the D.C. Circuit in accordance with CAA 

section 307(b)(1)). 
***E.O. 12866 Review – Draft – Do not Cite, Quote or Release During Review***

EO12866_SSM Petition_2060-AR68_Proposal_FRN_20121126 as of 2-7-2013

Page 321 of 322

and thus to indicate that venue for challenges to be in the D.C Circuit. Thus, any petitions 

for review must be filed in the Court of Appeals for the District of Columbia Circuit. 

Accordingly, the EPA is proposing to determine that this will be a rulemaking of 

nationwide scope or effect. 

In addition, pursuant to CAA section 307(d)(1)(V), the EPA is determining that 

this rulemaking action will be subject to the requirements of section 307(d). 

XI. Statutory Authority 

The statutory authority for this action is provided by CAA section 101 et seq. (42 

U.S.C. 7401 et seq.). 
Page 322 of 322 – State Implementation Plans: Response to Petition for 

Rulemaking; Findings of Substantial Inadequacy; and SIP Calls to Amend 

Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and 

Malfunction 

List of Subjects in 40 CFR Part 52 

Affirmative defense, Air pollution control, Carbon dioxide, Carbon dioxide 

equivalents, Carbon monoxide, Environmental protection, Excess emissions, Greenhouse 

gases, Hydrofluorocarbons, Intergovernmental relations, Lead, Methane, Nitrogen 

dioxide, Nitrous oxide, Ozone, Particulate matter, Perfluorocarbons, Reporting and 

recordkeeping requirements, Startup, shutdown, and malfunction, State implementation 

plan, Sulfur hexafluoride, Sulfur oxides, Volatile organic compounds. 

________________________ 

Dated: 

_________________________ 

Gina McCarthy, 

Assistant Administrator.